John Elwood’s Supreme Court Relist Watch for Upcoming Conference
TL/DR –
The Supreme Court has been reviewing relisted cert petitions in a variety of cases. One case, Barrett v. United States, involves a double jeopardy question concerning a federal sentencing enhancement for using a firearm during a violent crime and has been granted review. Another petition, dealing with a First Amendment challenge to university bias-response teams, was denied review. There are 126 petitions scheduled for the Supreme Court’s upcoming conference. Current relists involve issues ranging from constitutional constraints on judicial sentencing and restitution orders to medical malpractice requirements and ineffective assistance of counsel in death penalty cases.
Relist Watch Update: Supreme Court Reviews Key Cert Petitions
The Supreme Court has been diligently reviewing relisted cert petitions for the upcoming conference. This week saw the court grant review of a recent relist raising a double jeopardy question pertaining to a federal sentencing enhancement for using a firearm during a violent crime. On the flip side, the court denied review of a petition raising a First Amendment challenge to university bias-response teams, drawing a dissent from Justice Clarence Thomas. Other relisted cases continue for another week.
This Friday’s conference has 126 petitions and applications scheduled, with four being relisted for the first time this week. Two of these relists explore an issue that may sound familiar to regular readers. Just last week, the court denied review of a series of cases that probed whether the constitutional right to a jury trial in criminal cases requires the jury to find all facts necessary to impose orders of restitution.
Beyond this, there are two new relists to consider. Both William Neilly and Holsey Ellingburg, Jr. challenge their restitution orders, arguing that they are “civil” and remedial. Both their states of conviction admit that courts disagree about whether restitution is civil or criminal.
On a different note, Delaware’s “affidavit of merit” law is under scrutiny, which necessitates medical malpractice plaintiffs to file an expert affidavit attesting to their belief that the case holds merit. The question is how such laws should be perceived when state-law disputes are brought to federal court under “diversity of citizenship” jurisdiction.
A final notable case involves Harold Berk, who filed a medical malpractice claim in a federal district court in Delaware. The case was dismissed due to failure to file an affidavit of merit. In Berk v. Choy, Berk is now asking the Supreme Court to intervene.
New Relists
Neilly v. Michigan, 24-395
Issue: Whether restitution ordered as part of a criminal sentence is punishment for purposes of the Constitution’s ex post facto clause.
Berk v. Choy, 24-440
Issue: Whether a state law requiring that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.
Returning Relists
Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment.
Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues: 1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment, and 2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
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