Seven relists walk into a bar

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 been busy pruning the relist garden. In one form or another, the court trimmed seven cases from the relist rolls.

First, the marquee stuff: The justices granted review in one-time relist St. Mary Catholic Parish v. Roy, a challenge to Colorado’s universal preschool program – but only on questions involving the application of existing law to this program, leaving for another day the petitioners’ invitation to reconsider Employment Division v. Smith (the court’s landmark holding that government actions generally do not violate the free exercise clause so long as they are neutral and apply to everyone). That said, you can expect the court’s resolution of those issues to affect the strength of Employment Division going forward. And in five-time relist Beaird v. United States, an in forma pauperis Second Amendment firearms case, the court granted review limited to the question whether after Kisor v. Wilkie (which somewhat curtailed deference to agencies’ interpretations of their own regulations) courts should defer to U.S. Sentencing Guidelines commentary even if the underlying guideline is unambiguous. That means that nine-time relist Poore v. United States – the paid petition by frequent filer Neal Katyal presenting the same issue – presumably awaits life as a hold. I’m just glad the court will be resolving the issue four-and-a-half years after I filed a petition on precisely this issue.

The court also summarily reversed in nine-time relist District of Columbia v. R.W., upholding the constitutionality of a police traffic stop and reminding lower courts once again in a per curiam opinion that Fourth Amendment reasonable-suspicion analysis requires looking at the whole picture, not snipping out facts for one reason or another. Justice Sonia Sotomayor noted that she would have denied review, while Justice Ketanji Brown Jackson dissented from the summary reversal, accusing the court of “wordsmith[ing] a lower court” over a highly factbound dispute.

The court granted, vacated, and remanded in Smith v. Scott, a qualified-immunity case involving officers’ use of bodyweight pressure to restrain a suspect which had been relisted a remarkable 17 times. Clearly, this is a case that launched a few memoranda. The court GVR’d for further consideration in light of the month-old summary reversal in Zorn v. Linton, another case involving mild (but unpleasant) physical force by police.

On the unhappy side of the ledger for petitioners, the court turned away three-time relist Castro v. Guevara, a Hague Convention case concerning the standard of reviewing determinations a child was “well settled” and thus shouldn’t be returned, with Sotomayor writing separately to say that the court should eventually resolve the circuit split over whether such findings are reviewed de novo or for clear error. Lastly, the court flatly denied review in Foote v. Ludlow School Committee, a case challenging a school’s gender transition policy, without noted dissent after 12 relists. For a case that spent five months in relist purgatory, that is an awfully quiet exit.

Onto new business. There are just 99 petitions and applications on the docket for this week’s conference, and seven of them have been relisted for the first time. So this week at least, the court is operating on a one-in one-out policy, just like my guitar collection supposedly is.

Article III review versus administrative adjudication for farm work

The H–2A visa program grants U.S. employers the privilege of “import[ing]” foreign workers into the United States for temporary agricultural work under special visas. As a condition of granting petitions to import foreign workers, federal law requires an employer to agree to comply with statutory and regulatory requirements governing workers’ living and working conditions. Congress has authorized the Secretary of Labor to impose monetary remedies to assure employer compliance with those “terms and conditions.”

In Department of Labor v. Sun Valley Orchards, LLC, the solicitor general asks the Supreme Court to resolve whether Article III bars the Department of Labor from using its own administrative process to impose civil penalties and back wages on employers accused of violating the H-2A program’s employment conditions. The case comes out of a 2015 investigation of a New Jersey farm that used H-2A workers and, according to DOL, essentially cheated its workers. An ALJ and then DOL’s administrative review board upheld roughly $211,800 in civil penalties and $344,945.80 in back wages. The district court sustained the scheme, reasoning that immigration involved matters of “public rights” that could be adjudicated in administrative tribunals. The U.S. Court of Appeals for the 3rd Circuit reversed, holding that after SEC v. Jarkesy the case had to be heard in an Article III court because DOL was effectively pursuing common-law-type claims for civil penalties and back wages, rooted in what the court described as a contractual job order, and because the particular disputes here (involving housing, meals, transportation, and wages) were employment-law questions too far removed from the historical immigration cases involving admission and exclusion of aliens.

The government’s pitch is that this is a straightforward public-rights case twice over: immigration is a paradigmatic public right, and participation in the H-2A program is a government-conferred benefit, so Congress can let DOL police the terms of that benefit through administrative adjudication, just as agencies historically could impose monetary exactions in immigration and customs matters. Sun Valley responds that the government is trying to smuggle ordinary wage-and-hour and contract disputes into the immigration exception by pointing out that some of the workers held visas, and on its telling the DOL seeks money for working conditions on a farm (for both H-2A and corresponding domestic workers). This seems like a pretty strong candidate for review. Both parties agree there is no need to hold this case for FCC v. AT&T, which involves a different administrative-penalty scheme and turned at argument on whether later proceedings cure any constitutional problem. Because Sun Valley lacks that same back-end structure, AT&T may not present much of a speed bump to review here.

Arbitrating pro football disputes

In New York Football Giants v. Flores, the NFL and three of its member clubs petition for certiorari from a decision of the U.S. Court of Appeals for the 2nd Circuit holding that the arbitration provision in the NFL Constitution is unenforceable under the Federal Arbitration Act. The case began when Brian Flores, a veteran NFL coach, filed a putative class action in 2022 alleging systematic racial discrimination in NFL hiring under 42 U.S.C. § 1981. When the NFL moved to compel arbitration under the NFL Constitution – which designates the league commissioner as the default arbitrator for disputes between clubs and their employees – the 2nd Circuit held, on a ground Flores had never raised in either court below, that the provision amounts to “arbitration in name only” and falls entirely outside the FAA’s protections, because it vests arbitral authority in the NFL’s own chief executive and leaves procedures for him to develop.

The Giants’ petition argues that parties are entitled to choose their arbitrator and procedures, sports leagues have long used commissioner arbitration, and the 2nd Circuit has effectively invented a free-floating federal unconscionability doctrine under which judges may invalidate arbitration clauses they find insufficiently fair. And they allege a circuit split.

Flores responds that the case is far narrower than the NFL says: no circuit has approved forcing statutory employment-discrimination claims into a forum controlled by the employer’s own chief executive, and the decision below merely recognizes that “arbitration” does not ordinarily mean asking one side’s boss to decide whether his own side discriminated. The Atlantic Legal Foundation and Washington Legal Foundation filed a joint amicus brief supporting the NFL.

The court that gave us Epic Systems v. Lewis and AT&T Mobility LLC v. Concepcion will likely be sympathetic to the NFL’s framing of this as judicial hostility to agreed-upon arbitration procedures, but it remains to be seen whether the justices will view pro-sports arbitration as among the 60 most important cases of the year.

Florida sues California . . . again

We have another original action filed directly in the Supreme Court presenting a dispute between states. Based on recent filings, the case appears to be the product of the newly established Florida Department of Lawsuits Against California. In Florida v. California and Franchise Tax Board of California, the Sunshine State seeks leave to file an original bill of complaint challenging a California regulation that excludes certain “substantial” receipts from “occasional” asset sales from the state’s single-sales-factor apportionment formula – while still taxing the resulting gain as business income. Putting the formula-laden footnotes (check out footnotes 13 and 14!) and jargon to the side, Florida says that tax formula systematically over-apportions income to California for companies with payroll and property elsewhere, effectively penalizing firms that leave California and choose to move to places like Florida. On Florida’s telling, that not only injures affected corporations, but also deprives Florida itself of tax and investment revenue and harms its citizens and businesses, in violation of the commerce clause, the import-export clause, and the due process clause. In a brief likely prepared by the California Department of Being Sued by Other States, California responds that this is not a real sovereign-vs.-sovereign quarrel so much as Florida volunteering to litigate the tax grievances of private corporations; that affected taxpayers already have ordinary administrative and judicial avenues to challenge the rule; and that Florida’s merits theory rests on abstractions rather than the sort of taxpayer-specific record state-tax cases usually require.

This is plainly more credible than the recent wave of original-jurisdiction audition tapes built around immigration, elections, marijuana, or vibes. Florida has identified an actual tax rule, actual taxpayer proceedings applying it, and an actual doctrinal framework for attack. A number of credible amici also support Florida, including the Chamber of Commerce and the American College of Tax Counsel. Even so, this may look like the sort of case the justices will regard as better suited to ordinary taxpayer litigation than to the Supreme Court’s already unloved original docket. The only real suspense is whether Justice Clarence Thomas or Justice Samuel Alito write separately to remind everyone that in their view the court is not supposed to treat “original jurisdiction” as optional.

Commenting on a defendant’s failure to testify

The court is also considering a pair of capital cases from Alabama – Alabama v. Sykes and Alabama v. Powell – that present the same issues. In Sykes, Brandon Sykes was convicted of capital murder and sentenced to death for killing his ex-wife Keshia. In the prosecutor’s rebuttal statement, he said, “[t]here’s only two people in the world that know what happened in that house. One of them’s dead, and the other one is sitting right there at the end of that table.” In Powell, Michael Powell was convicted of capital murder and sentenced to death for shooting gas-station clerk Tracy Algar during a robbery. After defense counsel noted the prosecution’s failure to produce the murder weapon, the prosecutor replied in rebuttal that “there is only one person in this room who knows where the gun is. One person, he is sitting over there.”

In both cases, the Alabama Court of Criminal Appeals reversed the convictions. In Sykes, that court held that the “only two people” remark was an impermissible comment on the defendant’s failure to testify under 1965’s Griffin v. California. Alabama argues that the court effectively treated the remark as requiring reversal without giving sufficient weight to context, prejudice, or plain-error principles. Sykes contends that the court did engage in contextual analysis under Alabama law and simply found the error sufficiently serious to warrant reversal. The Powell opinion likewise held that the prosecutor’s “one person in this room” remark was an improper comment on silence. Alabama says that court treated the error too mechanically and without the harmless-error analysis required by the Supreme Court’s cases. Powell argues that the state court permissibly applied Alabama’s own constitutional and statutory protections as well.

Alabama’s petitions present two questions: first, whether Griffin error requires automatic reversal without contextual analysis or a finding of prejudice; and second, whether Griffin should be overruled altogether. On the first question, Alabama argues that the decisions below are inconsistent with the 1988 case of United States v. Robinson, where the court held that “prosecutorial comment must be examined in context,” and the 1983 case of United States v. Hasting, which rejected a per se rule of reversal for Griffin errors. Sykes and Powell respond that Alabama’s lower courts actually did engage in a contextual analysis, applying Alabama’s longstanding framework for evaluating prosecutorial comments, and that the results were correct on the facts. On overruling Griffin, Alabama marshals critiques from Thomas and Justice Antonin Scalia describing the decision as lacking any basis in the Fifth Amendment’s text or history. Powell and Sykes responds that the decision was also required by the Alabama constitution, placing the error beyond the Supreme Court’s review.

A pro-life club’s flyer fight

E.D. ex rel. Duell v. Noblesville School District asks whether a public high school may treat a student club’s meeting flyer as effectively the school’s own speech and then sanitize it accordingly. E.D., a Noblesville High freshman, started Noblesville Students for Life, which the school initially approved as a “student-driven and student-led” student-interest club. She was allowed to promote the club at the activities fair with pro-life signs and a shirt reading “I Am the Pro-Life generation.” The trouble began when she sought to post flyers for the club’s first meeting in school hallways. The proposed flyers used Students for Life of America templates and included photos of students holding signs such as “Defund Planned Parenthood.” School officials told her the flyers could include only the club name and the meeting’s date, time, and location, not the pictures or political messaging; after a further meeting involving E.D. and her mother, Principal Craig McCaffrey temporarily revoked the club’s recognition (on the grounds that the parent’s presence suggested it was not actually “student-led”), later allowing it to reapply and return the next semester.

The U.S. Court of Appeals for the 7th Circuit held that Hazelwood School District v. Kuhlmeier (dealing with a school’s ability to “maintain editorial control over the content of a high school student newspaper that was school-sponsored, supported, and supervised”), not Tinker v. Des Moines Independent Community School District (which deals with whether a “substantial disruption” was caused by the student’s activities), governed because the flyers would have been posted on school walls, in common areas, with administrator approval, and thus could reasonably be seen as bearing the school’s imprimatur; it then upheld the school’s restriction as reasonably related to pedagogical concerns, especially maintaining neutrality on political controversies.

E.D.’s cert petition says the 7th Circuit deepened a 3-1-2 split over when Hazelwood applies: the petition places the U.S. Court of Appeals for the 5th, 10th, and now 7th Circuits in a broad “imprimatur” camp based on a “reasonable observer” standard; the 3rd Circuit’s in-between camp that applies the test to student speech that occurs in an “organized and structured educational activity” camp; and the 6th and 11th Circuits when the student speech is part of the “curriculum.” As always seems to be the case when Alliance Defending Freedom files a petition, there are scads of amicus briefs – 11 of them, including one filed by Kansas and 14 other states. The Noblesville School District answers that there is no real circuit split at all, because the other circuits also apply Hazelwood flexibly and because petitioners did not present their anti-Hazelwood theory below in the form they now press, and they say the outcome would be the same even under the petitioners’ preferred cases.

This case’s allure is obvious: a plausible circuit split about student speech. But it remains to be seen whether the justices think the case involves too many messy questions about unwritten school practices, the principal’s separate rationale that the club was no longer truly student-led, and indications that the school did allow considerable pro-life expression outside the hallway-flyer context.

Cold Cell, Hot Issue

Antonio Smith was an inmate at Green Bay Correctional Institution in Wisconsin who had been on a hunger strike for 45 days to protest prison conditions. Because Smith had refused a correctional officer’s order to exit his cell for a daily wellness check, for three days, officers entered Smith’s cell, assisted him into a wheelchair, and transported him to the prison’s health unit for a medical examination. But on the fourth day, apparently frustrated by Smith’s intransigence, Captain Jay Van Lanen resorted to pepper spray to force Smith out of the cell, despite knowing Smith had a medical contraindication to the spray (asthma). That triggered an asthma attack that left Smith struggling to breathe. Smith was then forced to strip naked and was placed in a “control cell” – designed for disruptive inmates – still naked. The cell had a vent blowing air from outside at temperatures that dropped as low as 25 degrees Fahrenheit. Smith asked Lieutenant Timothy Retzlaff for clothing, bedding, a mattress, or a transfer to a warmer cell. Retzlaff said he would check with Van Lanen and never returned. Smith remained naked in the frigid cell for 23 hours, unable to sleep, spending most of the time on his feet. Smith filed suit pro se, but the U.S. Court of Appeals for the 7th Circuit appointed pro bono counsel.

A panel of the 7th Circuit unanimously held that the evidence would support a finding that Van Lanen and Retzlaff were deliberately indifferent to Smith’s exposure to extreme cold in violation of the Eighth Amendment. But the panel majority nevertheless granted qualified immunity, concluding that it could locate no case that “squarely governs” the officers’ conduct, because the 7th Circuit had never held it unconstitutional “to house an inmate in a cell that ranged in temperature from 25 to 57 degrees over a 23-hour period without clothes or a way to keep warm.” Judge David Hamilton dissented vigorously, reasoning that deliberately “refrigerat[ing] a naked human being for hours” was obviously unconstitutional even without a case on all fours.

In Smith v. Kind, Antonio Smith argues the 7th Circuit has done exactly what the court’s decisions in Hope v. Pelzer and Taylor v. Riojas forbid: demand nearly identical precedent before treating an obvious constitutional violation as clearly established. Wisconsin’s brief in opposition responds that this is not one of those “obvious” cases at all, stressing both the temporary nature of the confinement and the officers’ claimed offers of a shower and a smock (on the condition that Smith cooperate with his health assessments), and portraying the case as a factbound dispute over qualified immunity with no real circuit conflict. Amicus briefs from the Constitutional Accountability Center and Cato Institute both use the case as a vehicle to criticize qualified immunity doctrine generally. My guess is that the case has a colorable chance on the “outrage docket,” blunted somewhat by some factual questions and the panel’s holding that the treatment alleged is unconstitutional going forward, which the justices may feel blunts the need for review since the dispute is now about backward-looking damages.

That’s all for this week. Tune in Monday to see whether these turn into grants or spend another week on the relist wheel.

New Relists

Florida v. California and Franchise Tax Board of California, 22O163

Issue: Whether Title 18, Section 25137(c)(1)(A) of the California Code of Regulations violates the Constitution’s commerce clause, import-export clause, and due process clause.