RELIST SEE
By John Elwood
on 9 January 2025
at 9:23
The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A brief explanation of gene lists is available here.
On Friday, Supreme Court justices will meet for the first time in nearly a month to discuss whether to review new cases. As you might expect, a significant number of petitions and applications have been built up – 420 are scheduled for Friday’s conference. But out of all these cases, only one of them has been reinstated since the court’s last conference in 2024: Burt vs. Gordon.
In the early days of the COVID-19 pandemic, Michigan Governor Gretchen Whitmer issued an executive order requiring the state Department of Corrections to follow guidelines set by the Centers for Disease Control to contain the spread of COVID-19 in Michigan prisons . The department established procedures to separate inmates who had contracted COVID-19 or were in close contact with someone who had it from other inmates.
After contracting COVID-19 in August 2020 at the Muskegon Correctional Facility, Jimmie Leon Gordon sued the warden and deputy superintendent, arguing that they violated the Eighth Amendment by knowingly disregarding the risk the COVID-19 pandemic posed to him .
The district court dismissed Gordon’s lawsuit on the grounds that he had failed to show that prison officials had recklessly disregarded the risk that he would contract COVID-19.
But the U.S. Court of Appeals for the 6th Circuit reversed, holding that the district court should have accepted Gordon’s claims that prison administrators had flouted published social distancing guidelines and failed to isolate infected inmates.
On remand, the district court concluded that prison administrators were entitled to qualified immunity because, in light of the unprecedented circumstances of the COVID-19 pandemic, no clearly established federal law would have warned the defendants that their actions were unconstitutional.
The 6th Circuit reversed. It held that regardless of the novelty of the coronavirus, it was clearly established before the pandemic that prison officials could not show deliberate indifference to an effort to expose them to dangerous infectious diseases and that prison officials have a duty to protect prisoners from exposure to dangerous prison conditions. . The court concluded that “a reasonable prison official would have understood that by purposefully mixing infected inmates with uninfected inmates . . . violated the Eighth Amendment.”
At the Supreme Court, Michigan argues that given the novelty of the COVID pandemic, there was “no clearly established precedent to provide specific guidance to prison officials in their protection of inmates.” It argues that while appellate courts have been “inconsistent in their treatment of COVID-19,” courts have generally held that “prison officials have fulfilled their duties as long as they have established reasonable protocols … to combat the spread of the virus in prisons” — just like Michigan did here. And Michigan argues that the 6th Circuit analyzed the issue “at too high a level of generality,” rather than looking at the specific measures Michigan employed and determining whether they were clearly illegal when they were enacted.
Although Gordon represented himself before the 6th Circuit, he is now represented by the MacArthur Justice Center, which argues that the issue is not subject to a circuit split and that review of the appeals court’s unpublished decision is not warranted.
The Supreme Court devotes significant resources to summary judgments reversing what it concludes are unjustified denials of qualified immunity, as well as unjustified grants of habeas relief. It seems likely that one or more judges will take a closer look at whether the denial of qualified immunity here was justified.
New gene lists
Burt vs. Gordon24-73
Question: Whether the U.S. Court of Appeals for the 6th Circuit improperly denied qualified immunity to prison officials based on their response to the unprecedented global COVID-19 pandemic by defining the relevant law at too high a level of generality and failing to identify any precedent that recognizes a constitutional right under similar circumstances that would have put reasonable officials on notice that their conduct might be unconstitutional given the new challenge from the pandemic.
Recurring gene lists
Andrew v. White23-6573
Problems: (1) Whether clearly established federal law as determined by this court prohibits the prosecution’s use of a woman’s clearly irrelevant sexual history, gender presentation, and role as mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of the cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the conferences March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, 20 June and July 1; rerun after Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. conferences Dec. 22, 6 and 13.)
Turco v. City of Englewood, New Jersey23-1189
Problems: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should set aside Hill v. Colorado.
(Re-enacted after the conferences 15 November, 22 November, 6 and 13 December).
Coalition Life v. City of Carbondale, Illinois24-57
Question: Should this Court overrule Hill v. Colorado.
(Re-enacted after the conferences 15 November, 22 November, 6 and 13 December).
Carter v. United States23-1281
Problems: (1) Whether Feres against the USA should be limited to not precluding claims for damages brought by service members alleging medical malpractice who were not subject to military orders, were not engaged in any military mission, and whose military status was retroactively changed from inactive to active duty following medical malpractice; and (2) whether Feres the doctrine conflicts with the plain language of the Federal Tort Claims Act and should therefore be clarified, limited, or overruled.
(Re-enacted after the conferences on 6 and 13 December).
Apache Stronghold against the United States24-291
Question: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must meet heightened scrutiny under the Free Exercise Clause of the First Amendment, when it designates a sacred site for complete physical destruction, ending specific religious practices forever .
(Re-enacted after the conferences on 6 and 13 December).
