Relist Watch: Tales of Relists Foretold

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Relist Watch: Worst Monday in October

Posted on November 3rd, 2020 at 4:21 pm by John Elwood

John Elwood reviews Monday’s relists.

It is a time of heightened tension. Everyone is on pins and needles. On the first Tuesday after the first Monday in November, all of America wants to know one thing: What cases were reconsidered after the last October Supreme Court conference?

If you read that part from last week, you already know what questions the court will consider again at the conference this Friday. But that doesn’t mean that this was a status quo week. A lot has happened in Relists in the last few days.

First, the court quickly cleared up two cases listed three times and referred them back. Mckesson v. Doe, 19-1108, referred to First Amendment restrictions on imposing damages on a protest organizer. The judges cleared a U.S. appeals court ruling on maintaining 5th circuit liability and returned the case for the appeals court to seek advice from the Louisiana Supreme Court. Taylor v Riojas, 19-1261, was referring to the eligibility of prison officers to qualified immunity for allegedly holding a prisoner in filthy conditions. The judges cleared up another Fifth Circle decision, writing, “No reasonable correctional officer could have concluded that, in the extreme circumstances of this case, it was constitutionally permissible to detain Taylor in such deplorable unsanitary conditions for such a long period. ”

The court, however, denied review in the National Football League v Ninth Inning, Inc. (19-1098) case, which contained antitrust claims arising from the licensing of television rights to games not on the market. At least the NFL received the consolation prize from Judge Brett Kavanaugh for commenting on the rejection. He cautioned that a refusal to review the confirmation of a decision by the appeals court denying a motion to dismiss “should not necessarily be viewed as consistent with the appellate court’s legal analysis,” and the NFL may file a new petition if the league does not rule on summary judgment or after the trial. If you can’t get a review, a high-profile vote of confidence from the court’s likely middle justice is the next best thing. The news was significantly worse for two other Relists: The review was pursued in the capital case Dailey v Florida, 19-7309, with hearsay rules, and Woodard v USA, 20-5758, with the “stacking” of the mandatory minimum, denied firearms penalties without comment.

Since the last week has been light, I looked at a few unlisted cases that struck me as likely grants. That outing out of my track paid off this week as these cases are the only new lists this week. Carr v Saul (19-1442) and Davis v Saul (20-105) both address an issue that has been of particular interest to the Supreme Court recently – separation of powers. In these cases, the question is in particular whether an applicant who applies for a disability pension under the Social Insurance Act forfeits a contestation clause against the appointment of the administrative judge who oversees his case by failing to present this contestation during the administrative procedure. The government acknowledges that there is a circular conflict on this matter and says that both cases are “appropriate means” of resolving the conflict. But “[b]Because the petition … was filed in Carr first, “the government says,” the court may want to approve and keep this petition [Davis] until the decision on this case. “We’ll soon find out what the court thinks.

That’s all for now. Stay safe out there!

New relists

Carr v. Saul, 19-1442
Problem: Whether an applicant applying for a disability pension under the Social Insurance Act will forfeit a avoidance clause against the appointment of an administrative judge by failing to present that appeal during administrative proceedings.
(resumed after the conference on October 30th)

Davis v. Saul, 20-105
Problem: Whether an applicant applying for a disability pension under the Social Insurance Act will forfeit a avoidance clause against the appointment of an administrative judge by failing to present that appeal during administrative proceedings.
(resumed after the conference on October 30th)

Return relists

Shinn v. Kayer, 19-1302
Problem: Whether the U.S. Court of Appeals for the 9th Circuit violated the deferential standard of 28 USC § 2254 and used a flawed methodology that the Supreme Court repeatedly condemned when it granted habeas relief based on a de novo finding that a violation of the sixth amendment had occurred.
(Performed again after the September 29, October 9, October 16, and October 30 conferences; re-recording requested before the October 15 conference)

Posted in Shinn v. Kayer, Carr v. Saul, Davis v. Saul, Featured, cases in the pipeline

Recommended citation:
John Elwood, Relist Watch: Tales Predicted by Relists,
SCOTUSblog (November 3, 2020, 4:21 pm), https://www.scotusblog.com/2020/11/relist-watch-tales-of-relists-foretold/