What is going on with the relists?

RELIST WATCH What is going on with the relists? By John Elwood
on Dec 6, 2023 at 8:26 am Share

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.

Justice Sandra Day O’Connor – the first woman ever appointed to the Supreme Court – died at age 93 on Dec. 1. Because of her death, the Supreme Court cancelled that day’s conference, and rescheduled all 214 of the petitions and applications distributed for that day to be considered at this week’s conference. The court has its work cut out for it: it now has 290 petitions and applications to be considered this week.

The Supreme Court typically does not relist cases until the Monday (or first weekday) before that week’s conference. After this Friday, the court does not have a regular conference scheduled until Jan. 5. So if things go as expected, it will be nearly a month until you hear from me again.

That’s all for now. Until next time, stay safe!

Returning Relists

Tingley v. Ferguson, 22-942
Issues: (1) Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the free speech clause of the First Amendment; and (2) whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the court should overrule Employment Division v. Smith.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences; rescheduled before the Dec. 1 conference)

Thornell v. Jones, 22-982
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences; rescheduled before the Dec. 1 conference)

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences; rescheduled before the Dec. 1 conference)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences; rescheduled before the Dec. 1 conference)

Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, May 11 and Dec. 1 conferences; relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

Glossip v. Oklahoma, 22-7466
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences; rescheduled before the Dec. 1 conference)

Payne v. Biden, 22-1225
Issues: (1) Whether the judgment below should be vacated and the case remanded for dismissal as moot under United States v. Munsingwear, Inc; and (2) alternatively, whether the judgment below should be vacated and the case remanded for further consideration in light of Axon Enterprise v. Federal Trade Commission.
(relisted after the Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences; rescheduled before the Dec. 1 conference)

Biden v. Feds for Medical Freedom, 23-60
Issue: Whether, pursuant to United States v. Munsingwear, Inc., this court should vacate the court of appeals’ judgment and remand with instructions to direct the district court to vacate its order granting a preliminary injunction as moot.
(rescheduled before the Sept. 26 conference; relisted after the Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences; rescheduled before the Dec. 1 conference)

Harrow v. Department of Defense, 23-21
Issue: Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.
(rescheduled before the 11/9 conference; relisted after the Nov. 17 conference; rescheduled before the Dec. 1 conference)

Kendall v. Doster, 23-154
Issue: Whether, pursuant to United States v. Munsingwear, Inc., this court should vacate the court of appeals’ judgment and remand with instructions to direct the district court to vacate its orders granting preliminary injunctions as moot.
(relisted after the Nov. 17 conference; rescheduled before the Dec. 1 conference) 

Speech First, Inc. v. Sands, 23-156
Issue: Whether university bias-response teams — official entities that solicit, track, and investigate reports of bias; ask to meet with perpetrators; and threaten to refer students for formal discipline — objectively chill students’ speech in violation of the First Amendment.
(relisted after the Nov. 17 conference; rescheduled before the Dec. 1 conference)

Posted in Cases in the Pipeline

Cases: Tingley v. Ferguson, Thornell v. Jones, Harrow v. Department of Defense, Speech First, Inc. v. Sands, 74 Pinehurst LLC v. New York, 335-7 LLC v. City of New York, New York, Glossip v. Oklahoma, Glossip v. Oklahoma, Biden v. Feds for Medical Freedom, Payne v. Biden, Kendall v. Doster

Recommended Citation: John Elwood, What is going on with the relists?, SCOTUSblog (Dec. 6, 2023, 8:26 AM), https://www.scotusblog.com/2023/12/what-is-going-on-with-the-relists/