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.
The Supreme Court has disposed of four of last week’s 14 relists and appears to be holding a fifth. As is frequently the case, the government did especially well. The justices granted review in U.S. DOGE Service v. U.S. District Court for the District of Columbia, the separation-of-powers fight over discovery into whether DOGE is an “agency” subject to FOIA, and Blanche v. Ozurumba, the case asking whether cooking for a terrorist organization counts as “material support” only if it advances the organization’s actual commission of terrorism. And summer holdover Berry v. United States finally got its grant: The court will decide whether a certificate of appealability may issue when binding circuit precedent forecloses a prisoner’s claim, but another circuit has accepted it. Clark v. United States, which raises the same certificate-of-appealability question (plus a separate issue involving collateral challenges to financial penalties), lost the fight to be the court’s vehicle of choice and now appears to be held for Berry.
Lastly, the court denied review in Herrera-Salazar v. United States, the double-jeopardy challenge to successive prosecutions for being “found in” the United States without an intervening departure. Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, filed a statement respecting the denial. Although they agreed that Herrera-Salazar’s removal made review unwarranted, and hoped his repeated prosecution was unusual, they wrote to “underscore” that his prosecution presented “serious constitutional problems” and urged courts to avoid the “constitutional absurdity” they believed had occurred here. The other nine relists are making a return appearance this week.
As for the pro se petitions I labeled “lost causes” last week – none had drawn a response, or even a request for one – the label held up: None was granted. The court denied certiorari in some and denied leave to proceed in forma pauperis in the others.
Now on to new business. Friday’s conference docket once again features exactly 100 cases and applications, including six first-time relists.
Moonshine meets McCulloch
With Halloween approaching, it seems only fitting to begin with spirits – of the distilled variety. The first two relists, Department of Justice v. McNutt and Ream v. Department of the Treasury, involve a subject near and dear to American hearts: the right to make your own whiskey. Federal law has taxed distilled spirits since the days of Alexander Hamilton, helping to spark the Whiskey Rebellion. After the Civil War, Congress banned distilling in a “dwelling house” or in “any shed, yard, or inclosure connected with” one, 26 U.S.C. § 5178(a)(1)(B). The government defends the ban as a necessary and proper means of enforcing federal excise taxes on liquor, arguing that it channels distilling into places where tax collectors can keep an eye on it. Two federal appeals courts considered challenges to the same law less than two weeks apart and reached opposite conclusions.
In Department of Justice v. McNutt, the U.S. Court of Appeals for the 5th Circuit held that the ban exceeds Congress’ enumerated powers. Scott McNutt received a letter from the Alcohol and Tobacco Tax and Trade Bureau after he bought distilling equipment, warning him that unlicensed distilling is a crime. He and the Hobby Distillers Association sued, and a federal district court in Texas enjoined enforcement of the ban against McNutt, the association, and its members. The 5th Circuit affirmed the injunction, reasoning that a ban on distilling reduces taxable activity rather than helping to collect the tax and so is not “plainly adapted” to the taxing power under McCulloch v. Maryland. The court denied rehearing en banc without noted dissent. The government’s petition reminds the justices that the court “usually grants review when a court of appeals has invalidated a federal statute.”
Eleven days later, the U.S. Court of Appeals for the 6th Circuit went the other way in Ream v. Department of the Treasury. John Ream, a former aerospace engineer and brewery and taproom owner in Newark, Ohio, wants to distill whiskey at home. He has picked out the alcohol recipes he desires to use and a $600 copper pot still but hasn’t bought it. The district court dismissed his suit for lack of standing. A divided 6th Circuit panel reversed on standing but upheld the ban on the merits, reasoning that it shifts consumption toward commercial spirits that are less prone to tax evasion. Judge Andre Mathis dissented on standing. Ream’s petition adds a second question asking the court to overrule or clarify Gonzales v. Raich. Ohio and 14 other states have weighed in on his side.
Here is a rarity: Everyone agrees the court should take a case. The solicitor general concedes the split and the importance of the question, but argues that the court should grant McNutt and hold Ream. In the government’s view, McNutt is the cleaner vehicle because the judges agreed that at least one plaintiff had standing, while standing is disputed in Ream. Here’s another noteworthy thing: The government no longer defends the ban under the commerce power, making this, in its view, a taxing-power split and nothing more. The McNutt respondents likewise ask the court to grant both cases. Ream, for his part, says the government is just trying to keep the court away from Raich. A grant in McNutt seems likely; whether Ream gets invited along is a tougher question.
Third time’s the charm for school admissions challenges?
For the third time in three years, the justices are being asked whether parents challenging ostensibly race-neutral admissions policies must show a disparate impact before courts may consider evidence of discriminatory intent. In Association for Education Fairness v. Montgomery County Board of Education, a group of Montgomery County, Md. parents represented by the Pacific Legal Foundation argue that the U.S. Court of Appeals for the 4th Circuit conflicts with other circuits by requiring challengers to allege that the targeted group’s share of admissions fell below its share of the applicant pool. The court denied the earlier petitions, Coalition for TJ v. Fairfax County School Board and Boston Parent Coalition for Academic Excellence v. School Committee for the City of Boston, both times over dissents by Justices Samuel Alito and Clarence Thomas. In the Boston case, Justice Neil Gorsuch also wrote separately to echo their concerns. Alito warned that the 4th Circuit’s rule would become a “blueprint for evading” constitutional limits on consideration of race in admissions under Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
This case involves Montgomery County’s four selective magnet middle school programs. After a 2016 consultant’s report found Black and Hispanic students underrepresented, the district changed its admissions criteria, using “peer grouping” and “local norming” that favored students from higher-poverty schools. According to the complaint, Asian-American students’ share of invitees dropped sharply, falling by half at two of the programs. The district court initially refused to dismiss, finding it plausible that the board acted with discriminatory motive. But when the district switched during the COVID-19 pandemic to a lottery open to students at or above the 85th percentile on locally normed tests, the parents amended their complaint to challenge the lottery as a successor to the earlier plan. This time the district court dismissed, concluding, among other things, that the parents had not plausibly alleged that the lottery itself was adopted with discriminatory intent. The 4th Circuit affirmed in a short per curiam order, relying on circuit precedent in the TJ case that requires a challenger to show an aggregate disparate impact.
The parents’ petition argues that the U.S. Courts of Appeals for the 1st and 4th Circuits are now on one side of a 2-2 split requiring a showing of aggregate disparate impact. On the other side, the U.S. Court of Appeals for the 2nd Circuit held in 2024 that challenges can proceed based on other evidence of intentional discrimination, and the U.S. Court of Appeals for the 3rd Circuit agreed this year. The Montgomery County Board of Education responds that the case is “an exceptionally poor vehicle” and that the lottery, which is difficult to “even conceptualize” as “intentionally discriminat[ing] on the basis of race,” was adopted for different reasons, by different officials, than what the parents mainly attack. It argues that the case would come out the same way in every circuit. We’ll soon learn whether the more developed split changes the court’s mind – or merely produces another dissent from denial.
Major-league takings
The family of legendary Pittsburgh Pirates outfielder Roberto Clemente says his native Puerto Rico has appropriated the slugger’s trademarks. In 2022, the commonwealth began offering commemorative license plates and registration tags bearing Clemente’s image, jersey number, and the words “3000 hits.” The program allegedly raised roughly $15 million for a sports district named in Clemente’s honor. Clemente’s family, who say they never authorized it, sued under the takings clause and the Lanham Act in Clemente Properties, Inc. v. Pierluisi-Urrutia.
The U.S. Court of Appeals for the 1st Circuit held that the alleged infringement of the family’s trademarks did not constitute a per se taking comparable to a physical appropriation of property. It also held, bound by circuit precedent, that Puerto Rico enjoys the same sovereign immunity as a state and that the Lanham Act doesn’t abrogate it.
The Clementes ask the Supreme Court to decide whether intangible property is exempt from per se takings claims, and whether Puerto Rico is entitled to sovereign immunity in federal court. The justices expressly reserved the immunity question in a 2023 case concerning Puerto Rico’s financial oversight board, and Justice Thomas has expressed doubt that the commonwealth enjoys it. Although the petition identifies no square circuit split, it has attracted support from several property-rights organizations. Puerto Rico responds that the 1st Circuit decided only the narrow theory the Clementes chose to press. Puerto Rico also argues that the 1st Circuit had no occasion to announce a sweeping rule about intangible property. And it emphasizes the absence of a split and argues that the Lanham Act doesn’t unequivocally abrogate its immunity.
That’s a lot of constitutional law for a license plate.
Yet another qualified immunity case
Next up is Bauer v. Marks, a qualified-immunity case arising from the unrest in Minneapolis following George Floyd's death in 2020. During a confrontation between protesters and police, Minneapolis SWAT officer Benjamin Bauer fired a projectile at 19-year-old Ethan Marks, striking him in the eye and causing severe injuries. Marks sued, alleging excessive force. Bauer argued that he was entitled to qualified immunity because his conduct did not violate clearly established law.
A divided panel of the U.S. Court of Appeals for the 8th Circuit disagreed, concluding that disputed facts about whether Marks still posed a threat precluded qualified immunity. Bauer sought Supreme Court review, arguing that the appeals court had improperly focused on the moment Bauer fired rather than considering the entire encounter. Last year, the justices sent the case back to the 8th Circuit for reconsideration in light of their decision in Barnes v. Felix, which rejected the so-called “moment-of-threat” rule and required courts to consider the totality of the circumstances in evaluating excessive-force claims.
But a divided panel of the same court reached the same result on remand. The majority maintained that it had already considered the entire encounter, while Judge David Stras dissented, writing that, given the chaos during the unrest, no precedent clearly established that Bauer’s actions were unlawful. Bauer has now returned to the Supreme Court, arguing in his petition that the 8th Circuit both defied the justices’ remand order and failed to identify sufficiently similar precedent clearly establishing that his conduct was unlawful. Marks’ mother, who was substituted as plaintiff following his death earlier this year, responds that the panel faithfully applied Barnes and that factual disputes preclude qualified immunity.
Candy and compelled speech
Our final relist has impeccable timing. In Hanaway v. Sanderson, Missouri is asking the justices to decide whether the First Amendment gives convicted sex offenders a right to refuse to display a government-mandated Halloween sign. Missouri law requires registered sex offenders to remain indoors during trick-or-treating hours, turn off their outside lights, avoid Halloween-related contact with children, and post a sign stating, “No candy or treats at this residence.” Violations are misdemeanors.
Thomas Sanderson, a registered sex offender who traditionally decorated his home for Halloween and handed out candy, was arrested in 2022 for violating the law. He challenged the sign requirement, arguing that forcing him to display the government's message on his property violated his First Amendment right against compelled speech. The district court agreed, and the U.S. Court of Appeals for the 8th Circuit affirmed on the merits, holding that the sign requirement was subject to strict scrutiny and that Missouri had failed to demonstrate that it was narrowly tailored to protect children. It did, however, vacate the broader injunction and remand for relief limited to Sanderson under Trump v. CASA.
Missouri argues that the sign is a factual disclosure incidental to its conduct restrictions, so at most intermediate scrutiny applies under Rumsfeld v. FAIR. It claims a split between the U.S. Courts of Appeals for the 8th and 11th Circuits, which struck down Halloween signs, and the 5th Circuit, which upheld disclosure requirements associated with federal sex-offender registration. A group of states led by Iowa supports Missouri, arguing that the decision threatens other public-safety disclosure requirements. Sanderson responds that the only other federal appeals court to consider a similar Halloween sign requirement – the 11th Circuit – struck it down too.
The justices may be reluctant to intervene without a square circuit split, but the timing could hardly be better. I will leave it to our readers (both of you) to make the “trick or treat” jokes.
That’s all for this week! After next Monday’s orders, the relists take a break until November. Enjoy the time off – I know I will.
New Relists
Issue: Whether the law clearly established that the officer’s use of a less-lethal projectile, under the totality of the circumstances, constituted an unreasonable use of force in violation of the Fourth Amendment.
Clemente Properties, Inc. v. Pierluisi-Urrutia, 25-1426
Issues: (1) Whether the Fifth Amendment exempts intangible property from the per se rules that govern takings of tangible property; and (2) whether Puerto Rico enjoys any form of immunity from suit in federal court and, if so, whether the Lanham Act abrogates that immunity.
Association for Education Fairness v. Montgomery County Board of Education, 26-12
Issue: Whether a plaintiff alleging that a school district implemented facially-neutral admissions criteria for a racially discriminatory purpose must show that the criteria produced a disparate impact on the targeted racial group before a court may consider evidence of discriminatory intent.
Issue: Whether Missouri’s Halloween sign-posting requirement, which requires factually accurate disclosures, unconstitutionally compels the speech of convicted sex offenders.
Ream v. Department of the Treasury, 26-93
Issue: Whether the prohibition on the production of distilled spirits in particular locations, including “in any dwelling house” or “in any shed, yard, or inclosure connected with any dwelling house,” 26 U.S.C. 5178(a)(1)(B), is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.
Department of Justice v. McNutt, 26-204
Issue: Whether the prohibition on the production of distilled spirits in particular locations, including “in any dwelling house” or “in any shed, yard, or inclosure connected with any dwelling house,” 26 U.S.C. 5178(a)(1)(B), is necessary and proper for carrying into execution Congress’ enumerated power to lay and collect taxes.
Returning Relists
O’Donnell v. City of Chicago, 25-1098
Issues: (1) Whether the City of Chicago’s practice of impounding and selling a driver’s vehicle upon three unpaid parking tickets – keeping all sale proceeds without offsetting the ticket debt or refunding the surplus, and extending this to all vehicles registered to the driver, including those never ticketed and those purchased after any infraction – constitutes an unconstitutional taking; and (2) whether the takings clause places any limit on the ability of a local government to confiscate property under its police power.
(Relisted after the Sept. 28 and Oct. 9 conferences.)
Hadley v. City of South Bend, 25-1158
Issues: (1) Whether the takings clause has a police-power exception, making no compensation due when the government damages private property under its police power outside of eminent domain – or not; and (2) whether the government is exempt from liability under the takings clause when law enforcement officers intentionally destroy an innocent person’s property while trying to apprehend a fugitive.
(Relisted after the Sept. 28 and Oct. 9 conferences.)
Pena v. City of Los Angeles, 25-1163
Issues: (1) Whether the government is exempt from liability under the takings clause when law enforcement officers intentionally destroy an innocent person’s property in the course of attempting to apprehend a fugitive; and (2) whether the doctrine of “public necessity” is an exception to the takings clause.
(Relisted after the Sept. 28 and Oct. 9 conferences.)
Issue: Whether private instruction in courses required for state licensure constitutes government speech.
(Relisted after the Sept. 28 and Oct. 9 conferences.)
Issues: (1) Whether, in a use-of-force case which involves multiple instances of force, Barnes v. Felix requires that each use-of-force be analyzed progressively from before the first instance of force used through the last instance of force used, considering the information known to the officer, the suspect’s prior actions (including any compliance, non-compliance, resistance, and reaching or grabbing for a weapon), and the suspect’s reactions to those prior use(s)-of-force, and, if so, whether Officers Moore and Kurtz violated Stephen Romero’s constitutional rights under this standard; and (2) whether, when analyzing a defendant law enforcement officer’s motion brought under Rule 12(b)(6) or 12(c), in a use-of-force case where body camera video clearly depicts the entire lead-up to and application of force by a law enforcement officer, whether the lower courts may analyze the clearly established prong of qualified immunity at a more general, plaintiff-friendly, level than at the motion for summary judgment stage of litigation and, if not, whether Officer Moore and Officer Kurtz are entitled to qualified immunity under the facts of this case.
(Relisted after the Sept. 28 and Oct. 9 conferences.)
City of Bossier City v. Hershey, 25-1323
Issues: (1) Whether a plaintiff can plead single-incident municipal liability without alleging a violation of a clearly established constitutional right; and (2) whether a plaintiff can plead single-incident municipal liability without alleging a complete lack of training on the constitutional right in question.
(Relisted after the Sept. 28 and Oct. 9 conferences.)
Hershey v. City of Bossier City, 25-1389
Issue: Whether the principles of Hope v. Pelzer are limited to Eighth Amendment claims or extend to free speech and free exercise clause claims such that petitioner’s constitutional claims should not be barred by qualified immunity.
(Relisted after the Sept. 28 and Oct. 9 conferences.)
StandWithUs Center for Legal Justice v. Massachusetts Institute of Technology, 25-1404
Issues: (1) Whether the harassers’ subjective discriminatory intent is an element of a hostile environment claim under Title VI; and (2) whether the First Amendment bars a plaintiff from pleading a Title VI hostile environment claim based on “protected speech.”
(Relisted after the Sept. 28 and Oct. 9 conferences.)
Goldman Sachs Bank USA v. Brown, 25-1408
Issue: Whether, and under what circumstances, a bankruptcy court may override the Federal Arbitration Act and refuse to honor a valid arbitration agreement with respect to Section 362(k) claims.
(Relisted after the Sept. 28 and Oct. 9 conferences.)