John Elwood reviews Monday’s relists.

So on only our third try, we were correct that Justice Neil Gorsuch would fully participate in the court’s conference (with the usual number of incidental recusals) to discuss potential grants and the like. It may have been a milestone in the life of the court – just like when the newest member of the cafeteria committee leaves his mark on the court’s menu (NB: Justice, you’ll get less ribbing for adding poutine if you call the dish “gravy cheese fries.”). But it was largely a status quo conference. The court granted a couple of cases (both, gratifyingly, relists); the rest of the last batch of relists are taking another turn on the relist wheel.

The returning cases include, a bit surprisingly, Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, which raises (among other issues) the same question as Merit Management Group, LP v. FTI Consulting, Inc., 16-784, granted last Monday. I would have expected the court simply to hold it for Merit, but perhaps the justices need more time to figure whether to grant on another of Deutsche Bank’s issues.

There is only one new relist this week – but oh, what a relist it is. Peruta v. California, 16-894, asks whether the Second Amendment entitles citizens to carry handguns outside the home for self-defense – including concealed carry when carrying firearms openly is forbidden by state law. Under California law, openly carrying a handgun outside the home is generally prohibited, but concealed carry is permissible with a license. Applicants for concealed-carry permits must demonstrate “good cause” to obtain a license, which some county sheriffs (the relevant decision-makers) interpret to include a desire to carry a handgun for self-defense. The San Diego County Sheriff, however, defines “good cause” to require a showing of a particularized need for self-defense. Petitioners, a group of unsuccessful applicants (and potential applicants discouraged from applying by the sheriff’s interpretation) challenged that interpretation under the Second Amendment. The district court rejected their claims. But the majority of a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in an opinion by Judge Diarmuid O’Scannlain, held that the policy unconstitutionally infringed applicants’ Second Amendment rights. The majority of an en banc panel reached the opposite conclusion in an opinion by Judge William Fletcher, holding that the sheriff may deny concealed-carry licenses on any terms he chooses because there is no independent constitutional right to the concealed carrying of a firearm. (Thanks to the 9th Circuit’s unusual en banc procedures, the en banc panel excluded O’Scannlain.)

Four times, Peruta has been rescheduled – a procedure that, despite the court’s modest explanatory efforts, remains largely shrouded in mystery. It may be that the court was moving the case forward incrementally to ensure that the case was not considered at conference until the court had its full complement of members. In any event, the court relisted Peruta for the first time, which is good news for petitioners’ counsel, who include former solicitor general Paul Clement.

That’s all for this week. Tune in next week for more ill-informed tea-leaf reading!

Thanks to Bryan U. Gividen for compiling the cases in this post.

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New Relists

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28 conference)

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21 and April 28 conferences)

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13 and April 21 conferences)

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held — contrary to several other courts of appeals — that the presumption against federal pre-emption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held — following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits — that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held — contrary to this court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code — that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

(relisted after the April 13, April 21 and April 28 conferences)

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13, April 21 and April 28 conferences)

Sonoco Products Co. v. Michigan Department of Treasury, 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

(relisted after the April 13, April 21 and April 28 conferences)

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

(relisted after the April 13, April 21 and April 28 conferences)

Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21 and April 28 conferences)

International Business Machines Corp. v. Michigan Department of Treasury, 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

(relisted after the April 13, April 21 and April 28 conferences)

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21 and April 28 conferences)

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21 and April 28 conferences)

North Carolina v. North Carolina State Conference of the NAACP, 16-833

Issues: (1) Whether a federal court has the authority to re-impose, under Section 2 of the Voting Rights Act, the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County v. Holder; (2) whether the U.S. Court of Appeals for the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote-denial claim under Section 2.

(relisted after the April 13, April 21 and April 28 conferences)

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13, April 21 and April 28 conferences)

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13, April 21 and April 28 conferences)

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13, April 21 and April 28 conferences)

Rios v. United States, 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21 and April 28 conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 9, 2017, 10:19 AM), https://www.scotusblog.com/2017/05/relist-watch-103/