The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
Since our last post, the Supreme Court has done a bit of spring cleaning of the relist rolls. In its last orders list, the justices granted review in Johnson v. United States Congress, a veterans-benefits case asking whether the Veterans’ Judicial Review Act stripped district courts of jurisdiction to hear constitutional challenges to acts of Congress affecting veterans’ benefits. Both petitioner Floyd (“the Barber”) Johnson and the solicitor general supported review, so not much of a surprise there.
Much of the action came in the form of court orders granting writs of certiorari, vacating the judgment below, and remanding for further consideration of various factors. Both nine-time relist Sittenfeld v. United States (involving a Cincinnati city council member’s fraud conviction) and three-time relist Bannon v. United States (involving the former advisor to President Donald Trump convicted of contempt of Congress) were GVR’d for reconsideration in light of pending motions to dismiss their indictments as a result of presidential pardons. The government’s cert petition in eight-time relist Federal Bureau of Investigation v. Fazaga also was GVR’d for “reconsideration in light of recent factual developments pertinent to this case and the government’s motion to dismiss.” The petition involved the government’s claim that the U.S. Court of Appeals for the 9th Circuit had gutted the state secrets privilege in a case involving a claim by Muslim community members in Southern California that the FBI targeted them for surveillance solely because of their religion. But the relevant development was that Craig Monteilh, the FBI informant who was the linchpin of Fazaga’s claim, has since recanted the statements on which the claim was based.
The biggest head-scratcher was the court’s decision to deny review without comment in Stroble v. Oklahoma Tax Commission, even after relisting it eight times. The case involved whether Oklahoma may tax the income of a tribal member who lives and works in Indian country. Clearly, the case occasioned a certain amount of discussion if the justices relisted it for basically three months. That’s an unusually long runway for a quiet denial.
But let’s move on to new business. This week, there are a whopping 259 petitions and applications on the docket for this Friday’s conference. But only one of those cases is a new relist: St. Mary Catholic Parish v. Roy.
The 1990 case of Employment Division v. Smith held that the free exercise clause does not exempt religious observers from compliance with neutral, generally applicable laws (that is, laws applying to everyone and which do not target a particular religious group) – even if those laws substantially burden their religious practice. In recent years, there has been increasing conflict over when laws are generally applicable as well as whether the Supreme Court should overrule Smith.
Two Catholic parish preschools in the Denver area and the Archdiocese of Denver challenge Colorado’s Universal Preschool Program, which offers free, publicly funded preschool to four-year-old Coloradans through a “mixed-delivery” system that includes both public and private providers, including religious ones. The catch: to participate and receive public funding, all providers must ensure that children have an equal opportunity to enroll and receive services regardless of their or their parents’ sexual orientation, gender identity, religious affiliation, race, ethnicity, disability, lack of housing, or income level. The Catholic preschools sought an exemption to allow them to turn away children of LGBT parents or children who do not conform to the Church’s teachings on gender, on the grounds that admitting such children would require them to violate their religious convictions. When Colorado’s Department of Early Childhood denied that request, they sued. The district court ruled for Colorado, finding the state’s conditions to be neutral and generally applicable under Smith. The U.S. Court of Appeals for the 10th Circuit affirmed.
Petitioners press three questions. First, they contend that the 10th Circuit’s decision deepens a 7-4 circuit split over what kinds of secular exemptions render a law “not generally applicable” under Smith – specifically, whether courts must evaluate all secular exemptions and discretionary carve-outs, or whether only “unfettered” discretion and exemptions for “identical” secular conduct count. Second, petitioners argue the 10th Circuit has joined a growing number of courts in misreading the 2022 case of Carson v. Makin as prohibiting only explicitly religious exclusions, even though Carson holds that conditioning a public benefit on willingness to abandon religious exercise triggers the highest form of scrutiny regardless of whether the exclusion is expressed in religious terms. Third – and most ambitiously – petitioners urge the court to overrule Smith entirely.
Colorado’s brief in opposition insists there is no circuit split to resolve here because the 10th Circuit held as a threshold matter of state statutory interpretation that Colorado’s equal-opportunity requirements allow no exceptions whatsoever: the provisions petitioners point to as “secular exemptions” (for children with disabilities and children from low-income families) represent instead targeted protection for those groups, not carve-outs from the nondiscrimination mandate. As for Carson, Colorado maintains that the program does not exclude religious providers at all; it welcomes them, and conditions participation only on compliance with the same neutral, generally applicable requirement imposed on every provider. And Colorado asserts that “nothing has changed” that would warrant overruling Smith.
This case has a huge amount of amicus support: twenty-one amicus briefs, including an amicus brief filed by West Virginia and 21 other states and the U.S. Conference of Catholic Bishops. But most remarkably, the United States took the unusual step of filing a cert-stage amicus brief without being asked to. The solicitor general’s office has a reputation for splitting the difference in its amicus briefs, and there is some evidence of that here. The government ends its brief by saying that “resolving the question presented as to general applicability could obviate any need to resolve at this juncture whether Smith itself retains vitality, as petitioners urge in their third question presented.”
Over the years, several justices have expressed misgivings with the application and validity of Smith. This strikes me as a strong candidate for cert, but there’s no telling how much the court will decide even if it takes the case.
New Relists
St. Mary Catholic Parish v. Roy, 25-581
Issue: (1) Whether proving a lack of general applicability under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions for identical secular conduct; (2) whether Carson v. Makin displaces the rule of Employment Division v. Smith only when the government explicitly excludes religious people and institutions; and (3) whether Employment Division v. Smith should be overruled.
(Relisted after the April 2 conference.)
Returning Relists
Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.
(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Foote v. Ludlow School Committee, 25-77
Issue: Whether a public school violates parents’ constitutional rights when, without parental knowledge or consent, the school encourages a student to transition to a new “gender” or participates in that process.
(Relisted after the Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)’s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.
(Relisted after the Dec. 5, Dec. 12; being held for consideration in response to Fields’ rehearing petition.)
Gator’s Custom Guns, Inc. v. Washington, 25-153
Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Viramontes v. Cook County, 25-238
Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Poore v. United States, 25-227
Issue: Whether the limits on agency deference announced in Kisor v. Wilkie and Loper Bright Enterprises v. Raimondo constrain the deference courts may accord the U.S. Sentencing Commission’s interpretation of its own rules via commentary.
(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
District of Columbia v. R.W., 25-248
Issue: (1) Whether a court assessing the existence of reasonable suspicion under the Fourth Amendment may exclude a fact known to the officer, or instead must assess all the evidence when weighing the totality of the circumstances; and (2) whether, under the totality-of-the-circumstances test, the officer in this case had reasonable suspicion to conduct an investigative stop.
(Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
National Association for Gun Rights v. Lamont, 25-421
Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Beaird v. United States, 25-5343
Issues: (1) Whether 18 U.S.C. § 922(g)(1) comports with the Second Amendment; (2) whether Stinson v. United States still accurately states the level of deference due to the Commentary of the Federal Sentencing Guidelines; and (3) whether § 922(g) permits conviction for the possession of any firearm that has ever crossed state lines at any time in the indefinite past, and, if so, whether it is facially unconstitutional.
(Relisted after the Feb. 27, Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Issues: (1) Whether, in the Fourth Amendment’s reasonableness-of-a-seizure context, a law enforcement officer’s intended level of force is relevant to determining whether an officer’s use of force should be analyzed under a deadly-use-of-force standard or a general use-of-force standard; and (2) whether, in analyzing an excessive force claim brought under 42 U.S.C. § 1983, an officer’s mistaken use of force being higher than what he or she intended entitles the officer to qualified immunity, so long as the mistake is reasonable under the circumstances.
(Relisted after the Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson.
(Relisted after the Mar. 6, Mar. 20, Mar. 27, and Apr. 2 conferences.)
Florida v. California and Washington, 22-O-162
Issue: Whether the court should bar California and Washington from issuing commercial learner’s permits and commercial driver’s licenses (CDLs) “to applicants who are not United States citizens or lawful permanent residents” and from issuing “non-domiciled CDLS to applicants who do not meet the requirements of 49 C.F.R. § 383.71(f).”
(Relisted after the Mar. 20, Mar. 27, and Apr. 2 conferences.)
City of Los Angeles v. Estate of Hernandez, 25-538
Issue: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded court precedent, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that the court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to the court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.
(Relisted after the Mar. 20, Mar. 27, and Apr. 2 conferences.)
Issue: Whether a trial court’s determination that a child is “well settled” with regard to the Hague Convention is subject to de novo review, or whether it is reviewed for clear error.
(Relisted after the Mar. 20, Mar. 27 and Apr. 2 conferences.)
Issue: (1) Whether the Texas Court of Criminal Appeals’ creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code Article 11.071, Section 5, precludes review of petitioner’s Atkins claim under federal law; and (2) whether a state-created procedural rule may bar review of an Atkins claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review.
(Relisted after the Mar. 20 conference; now apparently held.)
The post “Universal” pre-K causes court to re-re-reconsider major religious precedent appeared first on SCOTUSblog.