Relist Watch: Worst Monday in October

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Relist Watch: Worst Monday in October

John Elwood checks the relists of the "long conference" … hardly.

The Supreme Court started black crepe still over an empty bench in October 2020, and began a remote phone dispute session for the second time in its history. But despite being a member and working remotely, the judges were efficient with their business, re-listing 15 cases with a variety of issues. With the press particularly urgent right now, this week we're once again feasting our readership with the affordable luxury of Relist Watch Select.TM

In short, after its long conference on September 29th, the court re-listed the following cases:

  • a challenge to the Department of Homeland Security's policy of returning to Mexico, asylum seekers entering through the southern border but lacking documentation;
  • four cases with constitutional challenges to the appointment of administrative patent judges;
  • a case found that Idaho prison officials violated the Eighth Amendment by refusing to provide sex reassignment surgery to a transgender prisoner;
  • a constitutional challenge to a governmental negligence measure that would hold a protest leader personally liable for damage caused by the violence of an unidentified person;
  • an antitrust case against the National Football League;
  • a firearms seizure challenge when police came to a house to detain the owner for a "mental disorder" when his wife tried to keep the firearms in the residence;
  • another case calling into question qualified immunity;
  • a case asking if state anti-SLAPP laws apply in federal diversity cases;
  • a case of whether the concrete apron in front of a garage is part of the front of a house for the purpose of the fourth amendment;
  • a 30 year old murder case that raised a hearsay problem;
  • a case of whether the Indian Gambling Regulation Act provides for a state ad valorem tax; and
  • Another case where it is argued that the U.S. Circuit 9th Circuit Court of Appeals applied an inadequate standard precedent in a habeas case.

Tune in next week when the workload (and probably my mood) should improve. Have a good week and stay safe!

New relists

Rodriguez v City of San Jose, California, 19-1057
Problems: (1) Whether the fourth amendment allows an exception to its warranty obligation for the so-called "community maintenance", if the alleged danger for the community has been remedied and the premises to be searched and the objects then confiscated do not represent an immediate threat or make it impossible to obtain timely arrest warrant; (2) Whether an exclusion of questions can exclude a right to the withdrawal of a constitutional right if the previous decision to discuss the constitutional question does not depend on the clarification of the merits of this question, established that state proceedings continue to exist, which the alleged violation in Asking the question and thus could not have been further examined before the Supreme Court as the constitutional claim would be considered immature and possibly avoided for reasonable and independent governmental reasons; and (3) whether the Supreme Court should exercise its oversight powers to review the improper circumvention of the Second Amendment protection in the US Court of Appeals for the 9th Circuit.
(resumed after the conference on September 29th)

National Football League v Ninth Inning, Inc., 19-1098
Problems: (1) An agreement between the members of a joint venture on how best to sell the jointly created core product of the joint venture can be condemned under the Sherman Act without the plaintiff having to demonstrate that the defendants are competing on a properly have affected the defined cartel market? and (2) whether, despite the Supreme Court ruling in Illinois Brick Co. v Illinois, antitrust claims for damages may be made by indirect buyers who do not claim to have paid a price set by the alleged conspirators.
(resumed after the conference on September 29th)

McKesson v. Doe, 19-1108
Problem: Whether the first amendment and Supreme Court ruling in NAACP v Claiborne Hardware Co. precludes a state negligence suit that would hold a protest leader personally liable for damage caused by the violence of an unidentified person, if so What is undisputed The leader neither intended, authorized, directed or ratified the offender's act, nor did he engage in violence or instigate it.
(resumed after the conference on September 29th)

Wolf versus Innovation Law Lab, 19-1212
Problems: (1) Is the Department of Homeland Security's policy known as Migrant Protection Protocols a lawful implementation of the legal powers granted by 8 US agencies? Section 1225 (b) (2) (C); (2) whether MPP is consistent with applicable and enforceable non-refoulement obligations; (3) whether MPP is exempt from the requirement of the Administrative Procedure Act to lay down rules for notices and comments; and (4) whether the district court's general injunction is inadmissible.
(resumed after the conference on September 29th)

Taylor v. Riojas, 19-1261
Problems: (1) Whether or not if the unconstitutionality of the conduct of government officials is evident, that is sufficient to clearly determine the violation, as the US appeals courts have recognized for the 6th, 9th and 11th circuits in analogous cases required binding precedent directly on this point, as the US Court of Appeals for the 5th Circuit found below; (2) Whether government officials are eligible for qualified immunity so long as there is no precedent recognizing the unconstitutionality of an identical specimen of facts as the U.S. Appeals Courts found for the 5th and 8th Circuit, or whether a previous precedent clearly so can determine a violation of the constitution despite some factual discrepancies, as the US appeals courts found for the 3rd, 4th, 7th, 9th, 10th and 11th circuits; and (3) whether the judge-made doctrine of qualified immunity, which is not evidenced by reference to the text of 42 U.S.C. Section 1983 or its common law background which has been shown to be inconsistent with its political objectives should be narrowed down or eliminated.
(resumed after the conference on September 29th)

Retzlaff versus Van Dyke, 19-1272
Problem: Whether under the doctrine of Erie Railroad Co. versus Tompkins in federal diversity cases, state anti-SLAPP (Strategic Litigation Against Public Participation) laws apply, as the US appeals courts do for 1st, 2nd, and 9th circuits do or do do not apply, as the U.S. appeals courts apply to the 5th, 10th, 11th, and District of Columbia Circuits.
(resumed after the conference on September 29th)

Idaho Department of Correction v Edmo, 19-1280
Problems: (1) Whether the U.S. Court of Appeals for the 9th Circuit has wrongly come to the conclusion that the guidelines set by an advocacy group – which provide for sex reassignment surgery instead of hormone therapy and counseling for gender-specific dysphoria – meet the minimum constitutional requirements for the medical care for inmates under the Eighth Amendment, if the U.S. appeals courts for the 1st, 5th, 10th, and 11th circuits all determine it is not; and (2) whether the 9th Circle's finding that the individualized medical decision of a health care provider in prison was inadequate and therefore constituted an intentional indifference, regardless of his subjective reasoning, contradicts Estelle v. Gamble states that mere negligence does not create willful indifference, and Farmer v. Brennan, who holds the vendor, must have known and ignored significant risk of serious harm in order to find willful indifference.
(resumed after the conference on September 29th)

Rogers County Board of Tax Roll Corrections v Video Gaming Technologies Inc., 19-1298
Problem: Whether a generally applicable governmental ad valorem tax that is credited on personal property of a non-Indian, non-governmental corporate entity and leased to a tribe for use in its casino operation is excluded by India's Gambling Regulation Act and the Colonel's Balancing Test White Mountain Apache Tribe Vs. Bracker Court for “Special Inquiry”: Unless the tax violates a federal regulatory purpose contained in the IGRA, the tax will not interfere with tribal sovereignty interests and the tax will support relevant and important government interests such as law enforcement, schools and health services.
(resumed after the conference on September 29th)

Bovat v. Vermont, 19-1301
Problem: Whether a police officer has access to "semi-private" areas within the living quarters of a house to conduct an investigation without a warrant.
(resumed after the conference on September 29th)

Shinn v. Kayer, 19-1302
Problem: Whether the U.S. Court of Appeals for the 9th Circuit broke 28 U.S. laws. Section 2254 Deferential Standard and used a flawed methodology that the Supreme Court repeatedly condemned in granting habeas relief based on a de novo determination that a violation of the Sixth Amendment had occurred.
(resumed after the conference on September 29th)

United States v Arthrex, Inc., 19-1434
Problems: (1) Are administrative patent judges of the US Patent and Trademark Office for the purposes of the appointment clause of the Constitution, senior officials to be appointed by the President with the advice and approval of the Senate, or “inferior officials” whom Congress has permitted appointment to a division chief; and (2) whether the US Federal Circuit Court of Appeals wronged in ruling on a avoidance clause filed by a litigator who failed to submit the appeal to the Agency.
(resumed after the conference on September 29th)

Smith & Nephew Inc. v Arthrex Inc., 19-1452
Problem: Whether administrative patent judges are "major" or "inferior" officials of the United States for the purposes of the constitutional appointment clause.
(resumed after the conference on September 29th)

Arthrex, Inc. v Smith & Nephew, Inc., 19-1458 (Vide 19-1434, 19-1452, 19-1459)
Problems: (1) Whether the U.S. Court of Appeals for the Federal Circuit Compensation is consistent with the intent of Congress when Congress has long viewed tenure protection as essential to ensuring the independence and impartiality of administrative judges; and (2) whether the Federal Circuit was correct in believing that the removal of tenure protection from administrative patent judges was sufficient to render APJs inferior officials, even though their decisions are not yet under review by any officer.
(resumed after the conference on September 29th)

Polaris Innovations Ltd. v Kingston Technology Co., 19-1459
Problems: (1) Whether the U.S. Court of Appeals for the Federal Circuit at Arthrex Inc. v Smith & Nephew Inc. was unable to dispose of a waiver of tenure protection for administrative patent judges to remedy the mid-term review breach of the Constitution's appointment clause because of Congress would have maintained such protection for APJs; and (2) whether the termination of APJ term protection by the Arthrex decision is insufficient to cure the IPR Act violation of the appointment clause.
(resumed after the conference on September 29th)

Dailey v. Florida, 19-7309
Problem: Whether the Florida Supreme Court's analysis of Chambers v Mississippi, which takes a factor-based approach adopted by some courts but rejected by most of the others, was unconstitutional.
(resumed after the conference on September 29th)

Posted in National Football League v Ninth Inning Inc., Mckesson v Doe, Wolf v Innovation Law Lab, Idaho Department of Correction v Edmo, Shinn v Kayer, Bovat v Vermont, Retzlaff v Van Dyke, US v Arthrex Inc., Arthrex Inc. v Smith & Nephew Inc., Rodriguez v City of San Jose, California, Taylor v Riojas, Rogers County Board of Tax Roll Corrections v Video Gaming Technologies Inc., Smith & Nephew Inc. Arthrex Inc., Polaris Innovations Ltd. v Kingston Technology Co., Dailey v Florida, Featured, Cases in the Pipeline

Recommended citation:
John Elwood,
Relist Watch: Worst Monday in October,
SCOTUSblog (October 7, 2020, 6:23 p.m.),
https://www.scotusblog.com/2020/10/relist-watch-worst-monday-in-october/