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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.
It’s been a big few days for the Supreme Court working through its backlog of relisted cases. Last Friday, the court agreed to review two cases involving the constitutionality of a statute allowing federal courts to assert jurisdiction over the Palestine Liberation Organization and the Palestinian Authority. And the court granted review in a third case that will finally address what constitutes a “second or successive” habeas petition restricted under the Antiterrorism and Effective Death Penalty Act.
The court also declined to take up a number of repeatedly relisted cases, in each case prompting opinions discussing the decision to deny and three dissents.
Parents Protecting Our Children, UA v. Eau Claire Area School District involved a school district’s guidance policy governing counseling transgender children. Justice Brett Kavanaugh noted that he would have granted the petition, while Justice Samuel Alito, joined by Justice Clarence Thomas, wrote in dissent that the case raised “a question of great and growing national importance: whether a public school district violates parents’ fundamental constitutional right to make decisions concerning the rearing of their children.”
In Wilson v. Hawaii, the court denied review of a Second Amendment challenge to Hawaii’s handgun-licensing scheme. Thomas, joined by Alito, wrote an opinion regarding the denial in which he argued that the Hawai’i regime “wrongly reduces the Second Amendment to a ‘second-class right,’” while at the same time agreeing that denial was warranted because of the case’s “interlocutory posture.” Justice Neil Gorsuch also filed an opinion regarding the denial in which he suggested that the Hawaii Supreme Court had not fairly grappled with the defendant’s Second Amendment defense to the possession conviction.
Lastly, the court denied review in Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, involving an equal protection challenge to a facially race-neutral admission policy used by three elite Boston public schools in 2021. Gorsuch wrote to emphasize that the challenged admissions policy had been replaced and the denial of review does not signify an endorsement of the lower court’s opinion upholding the policy. Alito and Thomas dissented from the denial of review, contending that the court of appeals had erred in its analysis and urging the court to “reject root and branch this dangerously distorted view of disparate impact.”
Transfer of sacred land
First up among the new relists this week is Apache Stronghold v. United States. For centuries, Western Apaches have focused their worship on a small site of federally owned land in Arizona called Chí’chil Biłdagoteel, or Oak Flat. The Apaches consider Oak Flat sacred land, their “corridor to the Creator” and the only locus of certain sacred ceremonies. Oak Flat is also the site of a campground owned by the Forest Service and cordoned off from private development by Congress in the 1950s.
After the third-largest reserve of copper in the world was discovered beneath Oak Flat, the government decided to transfer the site to a private mining corporation, Resolution Copper, to establish a mine. In 2014, Congress attached a rider to a major spending bill authorizing a land exchange between the U.S. Forest Service and the mining company.
Apache Stronghold, an advocacy group created by members of the San Carlos Apache Tribe, went to federal court in an effort to stop the transfer. The group argued that the land exchange would result in the destruction of the sacred site and thereby infringe upon the tribe’s First Amendment right to the free exercise of religion. They argued that the exchange would also violate the 1993 Religious Freedom Restoration Act, which requires courts to closely scrutinize federal actions that “substantially burden” religious free exercise.
An Arizona federal district court rejected the group’s request to stop the land exchange, and the full U.S. Court of Appeals for the 9th Circuit affirmed that ruling. The court of appeals held that the First Amendment challenge was foreclosed by Lyng v. Northwest Indian Cemetery Protective Association, which permitted Congress to sell off public lands that were sacred to an indigenous tribe. As in that case, the court of appeals explained, although the transfer here would “significantly interfere with” the tribe’s ability to practice its religion, the government’s actions did not violate the Constitution because they did not “coerce” members of the tribe “into acting contrary to their religious beliefs.” The 9th Circuit concluded that RFRA did not change that outcome because Congress passed the law against the backdrop of that decision.
In Apache Stronghold, the group seeks reversal of the 9th Circuit’s decision, arguing that the plain meaning of a “substantial[] burden” on religious worship under RFRA includes an action that would effectively prohibit that worship altogether. In addition, it argues that RFRA overrides the Supreme Court’s prior decision on public lands, because that decision only applied to generally applicable laws that incidentally burden religion — which Congress intentionally did away with when enacting the 1993 law. The government and Resolution Mining urge the justices to leave the 9th Circuit’s ruling in place.
Restrictions on tax exemption
Wisconsin law exempts from its state unemployment tax system certain religious organizations that are “operated, supervised, controlled, or principally supported by a church or convention or association of churches” and that are also “operated primarily for religious purposes.” Catholic Charities Bureau, Inc. is a nonprofit corporation and the social ministry arm of the Catholic Diocese of Superior. Its mission is “[t]o carry on the redeeming work of our Lord by reflecting gospel values and the moral teaching of the church” by “providing services to the poor and disadvantaged as an expression of the social ministry of the Catholic Church.” The bishop of the diocese of Superior controls Catholic Charities.
Catholic Charities sought a determination from the Wisconsin Department of Workforce Development that it was exempt from state unemployment taxes. Various decisionmakers in the administrative review process ruled both for and against Catholic Charities, but the final decisionmaker (the state Labor and Industry Review Commission) concluded that Catholic Charities “provide[] essentially secular services and engage[] in activities that are not religious per se” and thus did not qualify for the exemption.
The Wisconsin Supreme Court ultimately upheld the denial of the exemption, holding that the statutory criteria focused on “typical” forms of religious exercise: whether the entity proselytized, whether it “participated in worship services, religious outreach, ceremony, or religious education.” It therefore concluded that Catholic Charities did not qualify because it did not “attempt to imbue program participants with the Catholic faith” and its services “are open to all participants regardless of religion.” And the court concluded that the statute, so construed, could constitutionally be applied against Catholic Charities.
Several dissenting justices argued that the majority’s test put courts in the “constitutionally tenuous position of second-guessing the religious significance and character of a nonprofit’s actions.”
In Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, Catholic Charities argues that state courts of last resort are divided on whether the states may, consistent with the First Amendment’s free exercise and establishment clauses, deny church organizations a tax exemption because they do not engage in “typical” religious activities. Four state courts, to avoid infringing on religious observance, focus on whether an organization’s activities are motivated by sincere religious belief. By contrast, it argues, four other state supreme courts (including Wisconsin’s) have held that state agencies can review the religious organizations’ activities to determine whether they are “typical” religious behavior without running afoul of the constitution. Catholic Charities say that the latter test violates the First Amendment by favoring some religions over others, entangling courts in religious questions, and interfering with church autonomy.
Revisiting the Feres doctrine
The Federal Tort Claims Act waives U.S. sovereign immunity and authorizes tort actions against the federal government for the negligence of its employees, while expressly retaining immunity for “claim[s] arising out of the combatant activities of the military … during time of war.” The Supreme Court held in 1950’s Feres v. United States that the FTCA does not waive immunity for injuries that “arise out of or are in the course of activity incident” to a person’s military service. This so-called Feres doctrine has been the subject of extensive criticism for decades by numerous justices. Justice Clarence Thomas is the current leading critic of the Feres doctrine, saying the case was “wrongly decided and heartily deserves the widespread, almost universal criticism it has received” both for being atextual and for being unfair to military personnel.
Ryan Carter was a member of the National Guard, a reserve component of the military, and he spent most of his time in civilian employment. While not on active duty, Carter had surgery at a military hospital to address a longstanding spinal condition. During the surgery, his spine was injured, and he was left largely paralyzed.
When Carter sued, the district court dismissed his case, relying on the Feres doctrine. The U.S. Court of Appeals for the 4th Circuit affirmed that dismissal. In Carter v. United States, he now seeks review, arguing that the Feres doctrine does not itself apply to inactive military personnel and should not be extended to plaintiffs who were not then under military orders; and in any event, he argues that Feres should be overruled. Thomas has been trying for years to persuade his colleagues to revisit Feres; we’ll find out soon if he’s finally succeeded.
Tune in next time!
New Relists
Carter v. United States, 23-1281
Issues: (1) Whether Feres v. United States should be limited not to bar tort claims brought by service members alleging medical malpractice who were under no military orders, not engaged in any military mission, and whose military status was retroactively altered from inactive to active duty post medical malpractice; and (2) whether the Feres doctrine conflicts with the plain language of the Federal Tort Claims Act and should thus be clarified, limited, or overruled.
(Relisted after the Dec. 6 conference.)
Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, 24-154
Issues: (1) Whether a state violates the First Amendment’s religion clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior; and (2) whether, in addressing federal constitutional challenges, state courts may require proof of unconstitutionality “beyond a reasonable doubt.”
(Relisted after the Dec. 6 conference.)
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, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6 conference.)
Returning Relists
Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of 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 March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences.)
Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences.)
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences.)
Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences.)
Turco v. City of Englewood, New Jersey, 23-1189
Issues: (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 overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22 and Dec. 6 conferences.)
Coalition Life v. City of Carbondale, Illinois, 24-57
Issue: Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22 and Dec. 6 conferences.)
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