WATCH RELISTS
By John Elwood
on Dec. 2, 2021
at 9:04 a.m.
Relist Watch column examines certificate requests that the Supreme Court has “reopened” for its upcoming conference. A short explanation of Relists can be found here.
A lot happened on the relisting front on Thanksgiving as the Supreme Court dumped two of the remaining relists.
First, the parties agreed in Arlenes Flowers Inc. v. Washington, 19-333, in the much-cited trial petition involving a florist who argued that requiring her to create custom flower arrangements for a same-sex wedding would violate her religious beliefs. Thus, the court finally dismissed the case, which the court had reopened 11 times in the more than two years in which it was pending before the Supreme Court. But those who hope the court will address the same fundamental issue will soon have another chance in case 303 Creative LLC v Elenis, 21-476, which involves a web designer. The court will almost certainly consider this case in late December or early January so the case can be cleared in time for hearing in the April session. The court also approved a review of the only new neo list two weeks ago, Berger v North Carolina State Conference of the NAACP, 21-248, about the ability of North Carolina lawmakers to intervene on voter ID – Law of the state to protect from lawsuits Constitution and Voting Rights Act. [Disclosure: My law firm, Arnold & Porter, is among the counsel to the NAACP in this case.]
There are currently no new entrants among the 296 cases pending for the conference on Friday. But there is another case that has a great chance of a Supreme Court review that I thought I would report for you anyway: Golan v Saada, 20-1034, an international child custody case. According to the Hague Convention on the Civil Aspects of International Child Abduction, abducted children must be returned to their country of habitual residence so that the courts there can settle any custody disputes. The Convention provides for some narrow exceptions to this general rule, among other things if there is a risk that the return would expose the child to physical or psychological harm. The case raises the question of whether, if a district court finds that a return to the country of habitual residence would pose a significant risk to a child, it must consider remedial action that would facilitate the child’s return despite the finding of the serious risk .
The court requested the attorney general’s opinion in early April, and the office filed its brief in late October. The government argues that the petition should be allowed. In the Government’s view, the Convention allows a court, in deciding not to order the return of a child under Article 13 (b), to consider measures that could mitigate a serious risk of harm without, however, requiring it to do so. The government argues that a flexible, discretionary approach to improvement measures most closely matches the text of the Convention, its implementing legislation and the longstanding view of the State Department. The government notes that appeals courts have disagreed on how to deal with remedial action, and it says that the U.S. appeals court for 2nd settlement of return requests affects the fulfillment of the United States’ contractual obligations. The Supreme Court usually agrees with the Attorney General’s recommendation to allow a review, so in this case the petitioner should get good news soon.
Stay safe!
New relists
What are you searching for here? You have to concentrate.
Returning relists
Knight v. Pennsylvania, 20-7805
problem: Whether a state can require a defendant to produce an IQ score of 75 or less who “prior to the 18th clinical standards for diagnosis and contrary to several decisions in which the Supreme Court petitioners deny such Documentation was missing, discharge was granted.
(resumed after the conferences of October 29, November 5, November 12 and November 19)
Holcombe v Florida, 21-53
subjects: (1) Whether a criminal defendant creates an “actual” conflict of interest that adversely affects attorney representation when the attorney has “joint and dual” representation – that is, the defendant and a key prosecutor’s witness at the same time represents; (2) whether the standard “presumed disadvantage” of conflicts of interest applies if the public prosecutor (and not the defense counsel) informs the trial judge at the beginning of a trial of a conflict of interest of the defense counsel – a conflict which is described by the public prosecutor as “indispensable” – and the judge then fails to investigate the nature and extent of the conflict.
(resumed after the conferences of October 29, November 5, November 12 and November 19)
Trustee of the New Life in Christ Church v. City of Fredericksburg, 21-164
subjects: (1) Whether civil authorities violate the First Amendment by using their own interpretation of Church Doctrine to override a church’s designation that a particular official is a minister, and, if so, whether summary repeal is appropriate is; (2) whether the Supreme Court in the alternative given Fulton versus City of Philadelphiabecause Virginia introduced a “system of individual exemptions” to its property tax law and the city “cannot refuse to extend it”. [exemption] System too [the Church] without compelling reason. ‘”
(Relocated before the conferences on October 8th and 15th; performed again after the conferences on October 29th, November 5th, November 12th and November 19th)
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