Penultimate relists: papers, parents, and procedural puzzles

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.

This Thursday’s conference is the last one currently scheduled during the October Term 2025. If past practice is any guide, the court will add a mop-up conference after it releases the last opinions in argued cases – which, at this point, looks likely to happen next week. But before the justices can close the books on the term and scatter to their respective undisclosed locations, they have to clear out the relists.

The court made real progress on Monday, disposing of eight relisted cases. As we expected, the court granted review in last week’s Nielsen v. Watanabe, which asks whether a federal prisoner may bring an implied damages action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for alleged deliberate indifference to his medical needs after he was badly beaten by other prisoners. Some informed commentators think that the real question is not whether this particular Bivens claim survives, but whether the court has finally tired of narrowing Bivens one case at a time and is ready simply to overrule it. Meanwhile, the court is holding Mohan v. Watkins, which raises the same issue, pending Nielsen’s resolution.

In seven-time relist McCarthy v. Hernandez, the court summarily reversed the U.S. Court of Appeals for the 2nd Circuit’s grant of habeas relief to Pedro Hernandez, who was convicted of the notorious 1979 murder of six-year-old Etan Patz. Hernandez confessed to the murder multiple times – first before receiving Miranda warnings, and then again after receiving these – and argued that the later confessions were tainted by the earlier, unwarned one.

During deliberations, the jury sent the judge a note asking whether, if it found the first confession involuntary, it had to disregard all the later ones as well. The trial judge said no. The 2nd Circuit held that the trial court should have instructed the jury on the rule of 2004’s Missouri v. Seibert, under which certain two-step interrogations designed to circumvent Miranda are admissible only if the later, warned confession is sufficiently attenuated from the earlier, unwarned statement. The Supreme Court disagreed, and held that the 2nd Circuit had exceeded its authority under the Antiterrorism and Effective Death Penalty Act because Seibert “said nothing about jury instructions.” Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson noted that they would have denied certiorari.

The court also granted, vacated, and remanded (decided without oral argument) in two relisted cases after prosecutors confessed error. The court GVR’d in Newberry v. Texas for further consideration in light of Texas’ brief arguing that the Texas Court of Criminal Appeals had wrongly rejected Newberry’s claim that prosecutors improperly withheld exculpatory information in violation of Brady v. Maryland. And in Grayson v. United States, the court GVR’d after the U.S. Court of Appeals for the 6th Circuit upheld the admission of a FaceTime recording showing Grayson offering to pay for a murder, but the government later conceded that the recording should have been suppressed under federal law. Grayson still may not obtain relief on remand; the government maintains that any error was harmless. Justice Samuel Alito agreed in a dissent from the GVR order that the error was harmless, noting that Grayson herself had called the FBI and described the incriminating FaceTime call in detail.

The other relisted petitions fared less well. Continuing the solicitor general’s intermittent cold streak, the court denied review in United States v. Carter, in which the government sought review of a D.C. Court of Appeals (the highest court in D.C.) decision holding that a defendant’s race is relevant to whether a reasonable person would feel free to leave an encounter with police and thus whether the person has been “seized.” Alito, joined by Justice Clarence Thomas, dissented from the denial of certiorari, saying that the D.C. Court of Appeals’ rule was important, constitutionally fraught, and worthy of review now rather than later.

The court also denied review in five-time relist Saldaño v. Texas. Sotomayor, joined by Kagan and Jackson, dissented from denial, arguing that the court should at least have summarily vacated so that Texas courts could consider whether Victor Saldaño is intellectually disabled and therefore ineligible for execution under 2002’s Atkins v. Virginia. Sotomayor emphasized that every expert to evaluate Saldaño had concluded that he is intellectually disabled – and that even Texas had asked for a remand to sort that issue out. In her view, the Texas Court of Criminal Appeals’ refusal to take even that “modest step” risks turning the Eighth Amendment into a dead letter.

Lastly, the court denied review in 11-time relist City of Los Angeles v. Estate of Hernandez, in which the city sought review of a decision holding that the final two shots an officer fired at a man approaching her with a box cutter were constitutionally excessive. Thomas and Alito noted, without opinion, that they would have granted the petition.

That brings us to this week’s new business. There are 180 petitions and applications for this week’s conference. Six are being considered for a second time. So are they just summer reruns or surprise season finales? Let’s take a look.

Arizona’s proof-of-citizenship triple feature

Three of this week’s new relists – Republican National Committee v. Mi Familia Vota, Petersen v. Mi Familia Vota, and Arizona v. Promise Arizona – arise from long-running litigation over Arizona’s 2022 voting laws, known as House Bills 2492 and 2243. Together, they ask how far Arizona may go in requiring documentary proof of citizenship or residence, limiting mail voting by “federal-only” voters, and checking voter rolls for noncitizens – and how much deference the U.S. Court of Appeals for the 9th Circuit owed the district court after a bench trial.

Some background, regrettably necessary. In 2013’s Arizona v. Inter Tribal Council of Arizona, Inc., the Supreme Court held that the National Voter Registration Act of 1993 requires Arizona to “accept and use” the federal voter-registration form, which does not require documentary proof of citizenship, for federal elections. Arizona responded with a bifurcated system: voters who provided documentary proof of citizenship could vote in all elections, while those who used the federal form without such proof could be registered as “federal-only” voters. Then, in a 2018 consent decree in litigation brought by the League of United Latin American Citizens and others, the Arizona secretary of state (and the Maricopa County Recorder) agreed to treat state-form applicants the same way as federal-form applicants for federal-election registration purposes. In 2022, Arizona enacted H.B. 2492, which among other things required documentary proof of citizenship and residence for state-form applicants and barred certain federal-only voters from voting by mail or for president. H.B. 2243 added new procedures for checking databases and canceling registrations of voters believed not to be citizens.

The district court enjoined significant parts of the laws. As relevant here, it held that Arizona could not reject state-form applications lacking documentary proof of citizenship, both because of the LULAC consent decree and because the NVRA does not allow Arizona to demand that extra proof for federal registration. It also held that the documentary proof-of-residence requirement violated the NVRA, that public-assistance-agency forms requiring extra proof were not “equivalent” to the federal form, that Arizona could not deny mail voting to federal-form registrants lacking documentary proof of citizenship, and that the state could not systematically remove voters within 90 days of a federal election. After a lengthy bench trial, the district court also rejected the claim that H.B. 2243 was enacted with discriminatory intent.

A divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed most of the injunction but (holding that the district court applied too demanding an evidentiary standard) vacated the no-discriminatory-purpose finding. The panel majority also held that Promise Arizona had representational standing, even though Arizona says the organization failed to identify any injured member after trial. Judge Patrick Bumatay dissented, arguing the panel’s decision was “[u]nprecedented” and that Arizona’s proof-of-citizenship and voter-roll-cancellation laws should largely have been sustained. According to Bumatay, the consent decree could not bind the legislature, Promise Arizona lacked standing, and the majority reweighed the discriminatory-intent evidence in derogation of the “strong presumption of good faith” owed to lawmakers. Eleven judges dissented from denial of rehearing en banc on various grounds in three separate opinions.

The petitions divide the issues into three baskets. The RNC’s petition presents two questions: whether the NVRA or the LULAC consent decree bars Arizona from requiring documentary proof of citizenship from state-form applicants, and whether the NVRA bars Arizona from removing noncitizens from voter rolls within 90 days of a federal election. The petition filed by Arizona legislative leaders Warren Petersen and Steve Montenegro overlaps on the state-form question, but also asks whether the NVRA preempts Arizona’s rule barring federal-only voters without proof of citizenship from voting by mail, and whether the 9th Circuit improperly disturbed the district court’s discriminatory-intent ruling. The petition filed by the state of Arizona and state attorney general Kristin Mayes is narrower: it challenges the 9th Circuit’s holding that Promise Arizona has representational standing and the remand on discriminatory purpose.

The solicitor general, one of several respondents in the case, displays the kind of moderation that in Supreme Court practice usually means “everybody is at least a little unhappy.” It supports granting the RNC petition but opposes the others. The United States says the state-form proof-of-citizenship question and the 90-day removal question warrant review. The government also points to the court’s emergency-docket encounters with these issues before the 2024 election. Specifically, in August 2024, in this case, the court partially stayed the injunction against Arizona’s state-form proof-of-citizenship requirement, though it declined to disturb the injunction against the mail-voting restriction. And in October 2024, in Beals v. Virginia Coalition for Immigrant Rights, the court stayed an order blocking Virginia’s similar noncitizen voter-roll-removal program. The government reads those stays as a preliminary sign that the state-form and voter-roll questions warrant review; respondents read them more modestly, as emergency orders issued under election-season pressures. But the solicitor general argues that the mail-voting issue is not ready for the court, and that the discriminatory-intent ruling, though according to the government “plainly wrong,” is interlocutory (there has been no final ruling) and may be corrected on remand. Arizona responds that describing a ruling as “plainly wrong” is a peculiar reason to deny review.

The other respondents say the cases are poor vehicles. They argue that the state-form issue is entangled with the still-operative LULAC consent decree; that the mail-voting question is Arizona-specific, because Arizona’s federal-only-voter system and heavy reliance on mail voting are unusual; and that the discriminatory-intent issue is premature because the 9th Circuit merely sent this back to the lower court. On the 90-day issue, respondents argue that there is no real split and that the NVRA permits individualized removals close to an election, just not systematic programs likely to sweep in eligible voters when there is little time to correct mistakes. And the RNC and the solicitor general argue that this case presents a valuable opportunity to address these issues outside the context of a contested election.

Given the number of moving pieces, the justices probably need more time just to get a handle on all the issues, much less to decide whether there might be vehicle problems preventing the court from resolving them.

EAJA does it

Our next new relist is Montoya Palacios v. Liggins, which involves a question that sounds technical until you remember that lawyers, like everyone else, prefer to be paid: whether a habeas petition challenging civil immigration detention is a “civil action” under the Equal Access to Justice Act, making a prevailing detainee potentially eligible for attorney’s fees when the government’s position was not substantially justified.

Kevin Montoya Palacios, a citizen of El Salvador, was ordered removed but granted withholding of removal to El Salvador under the Convention Against Torture. After years under an order of supervision, ICE detained him following a routine check-in in Baltimore, saying his case was being reviewed for third-country removal to Mexico. Montoya Palacios filed a habeas petition under 28 U.S.C. § 2241, and the district court ordered his release under his prior supervision terms.

Montoya Palacios then sought fees under EAJA, which authorizes awards to prevailing parties in “any civil action (other than cases sounding in tort)” against the United States, to be filed “within thirty days of final judgment in the action,” defined to mean “a judgment that is final and not appealable.” Montoya Palacios did not wait until the government’s period for appealing his habeas win had expired; he applied immediately, and the district court denied relief under controlling precedent from the U.S. Court of Appeals for the 4th Circuit holding that immigration-detention habeas proceedings are not “civil actions” under EAJA because habeas is a “unique, hybrid” proceeding. Montoya Palacios sought summary affirmance under that precedent in an apparent effort to speed his case to the Supreme Court. The 4th Circuit obliged, affirming in a two-sentence order.

Montoya Palacios sought cert, noting that the government had acknowledged a “deeply rooted circuit split” regarding the availability of EAJA fees for immigration detention proceedings, with the U.S. Courts of Appeals for the 2nd, 3rd, and 10th Circuits holding that such fees are available and the U.S. Courts of Appeals for the 4th and 5th Circuits holding that they are not. The government, in a brief filed without seeking an extension, agrees that “the courts of appeals are divided on the issue, and this case would be a suitable vehicle for resolving the disagreement on an important and recurring legal question.” The papers were distributed for conference and the case appeared to be on a glide path for a grant.

Then came a late-arriving amicus brief filed by Eva Daley and Adolph Michelin, immigrants who won cases deepening the circuit conflict in the 10th and 3rd Circuits, respectively. [Disclosure: My firm was among counsel to Daley in the 10th Circuit and has been among counsel to Michelin in the 3rd Circuit and Supreme Court proceedings.]

They moved to file an amicus brief out of time, explaining that they had only recently learned of the case because of the summary nature of proceedings in the 4th Circuit and because the cert-stage filings were not publicly available through the court’s online docket. They argue that the question should not be decided in what they call a defective vehicle, arguing that Montoya Palacios filed his EAJA application before he was entitled to fees because the judgment was not final and was still open for the government to appeal, and that the case was not subject to adequate adversarial testing because Montoya Palacios sought summary affirmance under circuit precedent. Instead, they argue, the court should await a proper vehicle (such as the government’s anticipated petitions in Michelin or Daley, currently due in July).

Montoya Palacios responded that EAJA sets a deadline, not a “not-before” date; that timeliness is nonjurisdictional and was not raised by any party; and that summary affirmance is unsurprising when circuit precedent squarely forecloses the claim. Montoya Palacios argues that the issue is too urgent to wait for another vehicle, citing rapidly increasing numbers of immigration habeas cases and fee decisions dividing along circuit lines.

It seems likely that the Supreme Court will be resolving this issue during October Term 2026. It appears to be selecting the case or cases in which to do it.

Standing and parental rights

The Supreme Court and several justices have expressed concerns about state laws that affect parents’ involvement in their children’s gender identity and transitioning. Our next new relist, International Partners for Ethical Care, Inc. v. Ferguson, raises it in a new context: 2023 amendments to a Washington state law governing runaway youth shelters. Petitioners, a group of Washington parents, say those laws allow runaway minors seeking “gender-affirming treatment” to be referred for services without parental notice or consent, keep parents from learning their child’s location or condition, and delay reunification unless parents accept the state’s preferred approach. Washington describes them as “modest steps to address the crisis of transgender youth homelessness.”

The petitioners, backed by several organizations, challenged a trio of state laws, chiefly Senate Bill 5599 and House Bill 1406, directing Washington’s child-welfare agency to offer various behavioral-health services. The district court dismissed for lack of Article III standing. A unanimous panel of the U.S. Court of Appeals for the 9th Circuit affirmed, holding that the parents’ asserted injuries were not “actual or imminent,” but rather depended on numerous contingencies: a child would have to identify as transgender, run away, go to a licensed shelter, seek protected health care services, decline reunification services, accept referrals, and ultimately receive gender-affirming care. At most, the panel found, the parents “allege only that the looming ‘threat’ imposed by the Statutes has led them to alter their parenting styles so that the Statutes cannot affect them.” The court denied rehearing en banc over the dissent of three judges.

Petitioners contend that some judges are misusing standing doctrine as “an excuse … to avoid what they perceive as contentious constitutional questions.” They argue that “even though these laws do not regulate parents directly, parents of gender-confused children clearly … ‘might be considered an object of the [Washington] regulations,’” and thus have standing to challenge laws affecting them. They claim the decision below conflicts with decisions of the Supreme Court and the 5th Circuit. They are supported by so many amicus briefs (20) that the clerk’s office may decide it needs to start charging by the pound. Washington defends the decision as based on layers of contingencies, and emphasizes that the challenged laws impose no obligations on petitioners; do not authorize the state to take custody of children; and require Washington’s Department of Children, Youth, and Families to make good-faith efforts to notify parents and offer voluntary family-reconciliation services.

There is a lot here for the justices to sort through over the next week.

Yet another AEDPA split

Our last relist asks the justices to untangle yet another puzzle created by AEDPA when it was enacted 30 years ago. To appeal the denial of a federal habeas or 28 U.S.C. § 2255 motion, a prisoner needs a certificate of appealability, which a judge may issue only upon a “substantial showing of the denial of a constitutional right” – meaning that “reasonable jurists could debate” the claim.

Berry v. United States asks whether a COA should issue when the prisoner’s claim is foreclosed by his own circuit’s precedent but has been resolved in his favor by another circuit. The U.S. Courts of Appeals for the 5th, 6th, and 11th Circuits say no; the 9th and 10th Circuits say yes. Berry’s premise has a certain logic: a square circuit split is about the most concrete proof imaginable that reasonable jurists can debate something. In his case, the 11th Circuit saw it the other way, reasoning that “reasonable jurists will follow controlling law,” so binding circuit precedent ends the debate before it starts, whatever those misguided neighbors may think.

Here, Corey Berry pleaded guilty years ago to an 18 U.S.C. § 924(c) count predicated on attempted carjacking as a “crime of violence.” After the Supreme Court held in 2018’s United States v. Davis that § 924(c)’s residual clause was unconstitutionally vague and in 2022’s United States v. Taylor that attempted Hobbs Act robbery is not a “crime of violence” under its elements clause, Berry won authorization to file a second Section 2255 motion – only to lose under circuit precedent requiring him to prove his conviction rested only on the now-defunct residual clause. Berry didn’t try to satisfy that framework; he attacked it, and the same district judge who had taken his plea, and then the 11th Circuit denied him the COA that would allow him to appeal.

Berry now seeks Supreme Court review. He argues that “[w]here, as here, the circuits have divided on a legal issue, that issue is by very definition one that ‘reasonable jurists could debate.’ After all, they have in fact already debated it.” Several amici sharpen the systemic worry: a group of former federal judges and the criminal-defense bar note that COA denials grounded in circuit precedent quietly strangle the appeals that let the Supreme Court resolve splits in the first place. The government, for its part, largely sidesteps the 11th Circuit’s reasoning and characterizes the circuit conflict as a “limited disagreement” with no real-world consequences. And it adds some vehicle objections, claiming that Berry procedurally defaulted his claim and that it is time-barred. Berry answers that the decision below relied on neither defense, and so neither should be resolved by the Supreme Court before addressing the issue he petitioned on: this is, after all, “a court of review, not of first view.”

This one might have legs.

New Relists

International Partners for Ethical Care, Inc. v. Ferguson, 25-840

Issue: Whether parents have standing to challenge a law or policy that deliberately displaces their decisionmaking role as to “gender transitions” of their children, and in so doing creates present and likely future impediments to their ability to parent their children as they deem best for them.