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.
October Term 2025 is drawing to a close in just a few weeks. And before the Supreme Court can close the books on the term, it needs to zero out all of those relisted cases.
Since our last post, the Supreme Court has been busy at both ends of the relist spectrum – three grants, a like number of notable denials, and Justice Samuel Alito noting his disagreement with the court’s decision not to grant review.
On the grant side: the court took up Kian v. Florida, a direct challenge to Williams v. Florida asking whether the Sixth Amendment's jury trial guarantee requires a 12-person jury, a question Justice Neil Gorsuch (the author of Ramos v. Louisiana prohibiting nonunanimous juries) has been signaling he very much wants to revisit.
The court also granted review in Guerrero v. Johnson, a capital habeas case concerning when such a claim could not have been previously brought under the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, this case asks whether an Atkins v. Virginia intellectual disability claim that was technically available for decades became “newly available” (and thus can be raised) when the DSM-5 changed the diagnostic framework for assessing intellectual disability, a question that has divided the circuits.
And in Genalo v. Black, the court granted the solicitor general’s petition asking whether the due process clause ever requires bond hearings for noncitizens detained under the Immigration and Nationality Act’s mandatory detention provision. This also breaks what has been a notably rough stretch for the government in terms of getting cases granted. A twist: One of the respondents (Black) withdrew her appeal, and the other (G.M.) has been out of ICE custody since 2022. The court granted the case limited to only G.M., and added the question whether her case was now moot.
On the denial side, the court turned away two Alabama capital cases. In Alabama v. Powell – involving a murder conviction reversed on appeal after the Alabama Court of Criminal Appeals held that a prosecutor had impermissibly commented on the defendant’s decision not to testify – Alito, joined by Justice Clarence Thomas, dissented, arguing the decision below directly contradicts 1988’s United States v. Robinson, which found no constitutional violation on similar facts; Alito and Thomas noted they would grant and summarily reverse on the same grounds in the companion Alabama case.
The court also denied review in E.D. ex rel. Duell v. Noblesville School District, in which a high school freshman alleged that her school violated the First Amendment by refusing to approve flyers advertising her Students for Life club because the flyers depicted students holding “Defund Planned Parenthood” signs. Alito dissented alone, arguing that the court should grant review to clarify the relationship between 1988’s Hazelwood School District v. Kuhlmeier (which allows schools broad latitude to regulate school-sponsored expression) and the court’s larger line of government-speech decisions.
Now on to new business. There are 180 petitions and applications on the docket for this week’s conference. Two are being considered for a second time.
Is Carlson on life support – or already gone?
Both of this week’s new relists involve a remedy that the Supreme Court has spent the past several decades whittling away at. In the 1971 case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the court recognized an implied damages action under the Fourth Amendment against federal officers for a warrantless home search and arrest. It later extended that remedy twice, most recently in Carlson v. Green (yes, I just referred to a 1980 decision as “recent”), which allowed the estate of a federal prisoner to sue prison officials who allegedly violated the Eighth Amendment by failing to treat his serious asthma attack, resulting in his death. Since then, the court has repeatedly said that recognizing new Bivens actions is a “disfavored judicial activity,” and has instructed lower courts to ask first whether a claim differs in any meaningful way from the three existing Bivens contexts, and then, if it does, whether special factors counsel hesitation from extending it further. The problem, as often happens when the Supreme Court says “don’t extend this, but we’re not overruling it,” is that lower courts have been left to decide whether Carlson remains a functioning precedent or has become a dead letter.
Nielsen v. Watanabe is the cleaner of the two vehicles because it involved a convicted prisoner (not a pretrial detainee) and thus only implicates one constitutional provision, the Eighth Amendment. Kekai Watanabe was in federal custody at the Federal Detention Center in Honolulu when he was assaulted in a gang-related fight. He says he told correctional officers that he was experiencing headaches and pain and later described his condition to Francis Nielsen, a staff nurse, who allegedly denied his request to be taken to a hospital and treated him with over-the-counter medication. Months later, Watanabe was diagnosed with a fractured coccyx and bone chips in surrounding soft tissue. He sued Nielsen and others under Bivens, alleging deliberate indifference to his serious medical needs.
The district court dismissed, reasoning that Watanabe’s claim presented a new Bivens context because his injury was not comparable to the fatal medical emergency in Carlson and because he had access to the Bureau of Prisons’ administrative remedy program (which allows inmates to seek administrative review of issues relating to their detention). A divided panel of the U.S. Court of Appeals for the 9th Circuit reversed. The panel held that Watanabe’s claim did not meaningfully differ from Carlson because both involved the alleged deliberate indifference of federal prison officials to serious medical needs. It further held that the existence of alternative remedial structures, including the ARP, did not change things.
Eleven judges dissented from denial of rehearing en banc. Judge Ryan Nelson, joined by nine others, said the 9th Circuit had disregarded the Supreme Court’s Bivens instructions and had deepened circuit splits over whether alternative remedies and differences in the severity and immediacy of medical harm can make a context “new.” Judge Daniel Collins wrote separately to say that, under the Supreme Court’s current standards, Carlson may have been so thoroughly hollowed out that it is hard to know “what, if anything, is left” of it.
Nielsen’s petition presses that point, arguing that if an on-scene death after egregious mistreatment is Carlson, a fractured coccyx treated with over-the-counter medication and later referred for outside care is something else. Watanabe responds that his claim is Carlson all over again: same constitutional right, same kind of plaintiff, same kind of defendant, same alleged failure to provide adequate medical care. He says the supposed splits are exaggerated, that an inmate need not die to bring a Carlson claim, and that the ARP does not create a per se new context because Carlson remains binding within its established domain.
Mohan v. Watkins arrives as the solicitor general’s companion case. Jordan Watkins was detained at the Metropolitan Correctional Center in Chicago, first as a pretrial detainee and then, briefly, as a convicted prisoner before transfer. He underwent hernia-repair surgery at an outside hospital. After returning to MCC, he says, he immediately experienced severe groin pain and swelling, including testicles swollen “to the size of a grapefruit,” a phrase that manages to be both clinically descriptive and quite culinarily off-putting. Watkins alleges that he told MCC medical staff, including Dr. Brij Mohan, about his condition; that staff dismissed the swelling as a routine side effect; that the medication they gave him did not work; and that they denied his request for follow-up care with his surgical team. He later underwent another surgery after transfer to a separate facility. Watkins sued the United States under the Federal Tort Claims Act and brought Bivens claims against Mohan and others.
The district court dismissed the case, but the U.S. Court of appeals for the 7th Circuit reversed, holding that Watkins’ Eighth Amendment claim for constitutionally inadequate medical care “fit squarely within the Bivens claim recognized by Carlson,” while remanding the FTCA claim for further proceedings. Judge Thomas Kirsch dissented in part, concluding that Watkins’ claim differed meaningfully from Carlson because it involved chronic post-surgical pain, a pretrial detention facility, and medical care that was less urgent and less severe than the fatal asthma attack in Carlson.
The petitioners in both cases – the solicitor general in Mohan, Nielsen (represented by Supreme Court heavy hitter Jeff Lamken) in his own case – argue that the circuits are badly split in two distinct ways, and they want the justices to clean it all up. The first split concerns whether the existence of the Bureau of Prisons’ ARP grievance process (which postdated Carlson’s death and 1980’s Carlson did not discuss it, but which has existed since 1979) means that later-arising prisoner medical-care suits involve a “new context” to which Carlson should not be extended. The U.S. Court of Appeals for the 3rd, 10th, and 11th Circuit answered yes. Several other circuits, including the U.S. Courts of Appeals for the 1st and 9th Circuits, disagree. The second split concerns whether the severity of a plaintiff's injury can render the context “new” as compared to Carlson’s death-by-asthma facts. The U.S. Courts of Appeals for the 3rd, 7th, and 9th Circuits say it cannot (a plaintiff need not suffer death or a life-threatening injury to bring a Carlson claim); the U.S. Courts of Appeals for the 1st, 10th, and 11th Circuits say less severe or non-emergency injuries do indeed create a new context.
The vehicle question is where things get interesting. The government’s petition in Mohan actually recommends that the court grant Nielsen instead and hold Mohan, noting that Nielsen arises purely under the Eighth Amendment and avoids complications from Watkins’ pretrial-detainee status, which implicates the Fifth Amendment as well. Nielsen’s own supplemental brief enthusiastically concurs, for obvious reasons. By the time of the reply, however, the government had softened its preference, suggesting that the court could grant Nielsen, Mohan, or both and consolidate them. The respondents, naturally, insist neither case warrants review. Watanabe’s brief in opposition counters that the circuit decisions largely reflect case-specific factual variations rather than entrenched doctrinal conflict, and that further consideration by the lower courts is warranted.
The court has been dancing around Carlson's viability for years, most recently reaffirming it exists in Goldey v. Fields last term, while simultaneously making it harder and harder to use. Judge Collins of the 9th Circuit, dissenting from the denial of rehearing en banc in Nielsen, put it most directly: the court's current standards, “if faithfully applied, would seemingly finish off Carlson entirely,” and lower courts could use some guidance as to “what, if anything, is left of Carlson.”
We’ll have a better idea Monday about whether the court is finally ready to answer that question – or to let the circuits keep litigating the afterlife of a 46-year-old precedent one broken bone at a time. But I think the odds of a grant in one or both of these cases looks pretty good.
New relists
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in recognizing a Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics cause of action.
(Relisted after the June 11 conference.)
Issue: Whether Carlson v. Green permits an inmate’s claim that prison staff at a pretrial detention center violated the Fifth and Eighth Amendments through deliberate indifference to an inmate’s chronic pain after a surgery.
(Relisted after the June 11 conference.)
Returning relists
Gator’s Custom Guns, Inc. v. Washington, 25-153
Issue: Whether ammunition feeding devices with the capacity to hold more than 10 rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
Issues: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices 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.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
Viramontes v. Cook County, 25-238
Issue: Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
National Association for Gun Rights v. Lamont, 25-421
Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
Issue: Whether the Second and 14th Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
City of Los Angeles v. Estate of Hernandez, 25-538
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.
(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.
(Relisted after the Apr. 17, April 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.
(Relisted after the Apr. 24, May 1, May 14, May 21, May 28, June 4, and June 11 conferences.)
Dershowitz v. Cable News Network, Inc., 25-770
Issues: (1) Whether a defendant’s systematic omission of qualifying and limiting language from a plaintiff’s recorded statement constitutes proof of actual malice under New York Times Co. v. Sullivan, sufficient to survive summary judgment; (2) whether the actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures; and (3) whether this court should modify Sullivan’s clear-and-convincing and burden-of-proof evidentiary standards.
(Relisted after the May 21, May 28, June 4, and June 11 conferences.)
Issues: (1) Whether, where the petitioner, the state, and the habeas court all agree that a conviction is unconstitutional and must be reversed, it violates due process for a state superior court to summarily deny relief without explanation; and (2) whether the prosecution violated Brady v. Maryland by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide.
(Relisted after the May 28, June 4, and June 11 conferences.)
Grayson v. United States, 25-851
Issue: Whether 18 U.S.C. § 2515’s exclusionary rule, which provides that “no part of the contents” of an intercepted communication “and no evidence derived therefrom may be received in evidence in any trial, hearing, or proceeding” before any state or federal court or governmental body “if the disclosure of that information” would violate Title III of the Omnibus Crime Control and Safe Streets Act of 1968, contains an unwritten clean-hands exception.
(Relisted after the June 4 and June 11 conferences.)
United States v. Carter, 25-885
Issue: Whether perceptions of law enforcement that a court attributes to a particular racial group are a relevant factor in the Fourth Amendment analysis of whether a member of that group has been seized.
(Relisted after the June 4 and June 11 conferences.)
