Reschedule Watch: Birthright Citizenship and Offenses Against Members of the Armed Forces


The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of the lists is available here.

This week’s update on newly listed cases from the Supreme Court will be short: there are no new listings. However, with one exception, all Relics from last week are back. The chances of obtaining a certificate decrease slightly as a case is repeatedly re-listed, but the odds are still high compared to the general series of certiorari motions. On Monday, judges refused consideration of a list nine times Thomas vs. Lumpkin, involving racist juror claims in a landmark case. But Judge Sonya Sotomayor, joined by Judges Elena Kagan and Ketanji Brown Jackson, wrote a dissenting opinion of the cert denial, arguing that the constitutional errors in Thomas’ case were so egregious that she would have summarily quashed.

Since we have a little time, I thought I’d mention two cases that the court adjourned this week. Postponement – ​​when a case is moved to a later conference than the one at which it was originally scheduled to be considered – is different from rebooking (when judges consider a case again at a later conference). For starters, by the time a case is rescheduled, the judges still haven’t considered the case as a class. But the fact that the case is postponed means that at least one of the judges wants to take a closer look. It seems that a judge sometimes postpones a case so that he can be ready to argue for a grant when the case finally comes to his first conference. Sometimes, it seems, cases are postponed because one or more judges want to write an opinion regarding the denial of cert. But sometimes, as some of the relisting backlists this week illustrate, rescheduled cases are then relisted (and, ultimately, granted).

The first of our new rescheduled cases is Clendening v. United States. The case concerns the so-called Feres doctrine, after Feres v. United States, the 1950 Supreme Court case ruling that the United States is not liable under federal tort claims law for injuries sustained by members of the armed forces on active duty and resulting from the negligence of other members of the armed forces. The injuries in Clendant were not the kind of combat-related or even work-related injuries one would expect: Petitioner Carol Clendening seeks to recover from her late husband’s exposure to toxic drinking water as she was a general officer judge advocate at Camp Lejeune, North Carolina. Judge Clarence Thomas has repeatedly criticized the Feres doctrine — like Judge Antonin Scalia before him — he is therefore likely to look closely at this case and again urge his colleagues to ignore the case which is the source of the doctrine.

The next step is Fitisemanu v. United States. In a series of cases decided by the Supreme Court more than 100 years ago, known as the Insular cases, people born in unincorporated U.S. territories, such as American Samoa, did not have entitled to all constitutional protections, including U.S. citizenship. (People born in the other territories—Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands—have birthright citizenship by act of Congress.) The island affairs have come under recent criticism. of Judge Neil Gorsuch. In a 10-page deal earlier this year in United States vs. Vaello MaderoGorsuch called for the island business to be rescinded, writing that “[i]It’s high time to acknowledge the seriousness of this mistake and admit… [t]Island affairs have no basis in the Constitution and are instead based on racial stereotypes. Gorsuch said he hopes the court will soon overturn those cases in “a proper case.” He noted that “[l]Lower courts continue to feel compelled to enforce their terms,” citing the then-recent decision of the United States Court of Appeals for the 10th Circuit in Fitisemanu v. United States. There, a split panel was held based on Insular Affairs that “unincorporated” U.S. territories are not considered “the United States” under the citizenship clause of the 14th Amendment.

Only a week later Vaella MaderoJohn Fitisemanu, Pale Tuli and Rosavita Luti, who were born in American Samoa, filed their petition with the court. Fitisemanu v. United States asks judges to overturn the island cases and grant birthright citizenship to people born in American Samoa and other U.S. territories. Fitisemanu and the Tulis argue that the 14th Amendment, passed after the Civil War, adopted the common law understanding of the founding era of citizenship based on birthright. They argue that “[f]New questions are more important to our constitutional system than who is entitled to US citizenship. Based on his agreement, it seems likely that this petition will get Gorsuch’s attention.

Until next time, stay safe!

New relics

Your attention to detail leaves much to be desired.

Return Relishes

Anthony v. Louisiana21-993
Problems: (1) Do the presumption of innocence, the right to confrontation, and the right to a fair trial permit a court to permit the grand jury prosecutor to testify and testify regarding the prosecutor’s belief of credibility the alleged victims, the guilt of the accused and the strength of the State’s case; (2) whether the admission of such inculpatory evidence constitutes structural error or, conversely, is subject to harmless error scrutiny; and (3) whether a reviewing court’s finding that the evidence at trial supports the accused’s beliefs, even excluding the grand jury prosecutor’s testimony, satisfies the state’s burden of proof. an error that is harmless beyond a reasonable doubt.
(rescheduled before the June 16 conference; relisted after the June 23, June 29, September 28, and October 7 conferences)

Buffington vs. McDonough21-972
Problems: (1) If the doctrine of Chevron USA, Inc. v Natural Resources Defense Council, Inc. allows courts to defer to the Department of Veterans Affairs’ interpretation of a law designed to benefit veterans, without first considering the pro-veteran canon of interpretation; and (2) if Chevron should be cancelled.
(postponed before the conferences of May 12, May 19, May 26, June 2, June 9, June 16 and June 23; on sale after the conferences of September 28 and October 7.)

Khorrami vs. Arizona21-1553
Publish: Whether the Sixth and 14th Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a crime.
(back on sale after the conferences of September 28 and October 7)

Juno Therapeutics, Inc. v. Kite Pharma, Inc.21-1566
Iissue: The relevance of the “written description of [an] invention” is measured by the legal standard of “in full, clear, concise, and accurate terms enabling any person skilled in the art to make and use the same” in 35 U.S.C § 112(a), or by The Federal Circuit test that the “written description of the invention” must demonstrate the inventor’s “possession” of “the full scope of the claimed invention”, including all “known and unknown” variations of each component.
(back on sale after the conferences of September 28 and October 7)

Shoop vs. Cunningham21-1587
Problems: (1) Did the United States Court of Appeals for the 6th Circuit err in granting habeas relief based on an alleged misapplication of its own circuit precedent under the anti-terrorism and effective death penalty law, which generally prohibits courts from awarding habeas relief to state prisoners, but waives this prohibition for prisoners in custody due to a court order of state that was “contrary to or involved an unreasonable application of a clearly established federal law, as determined by the Supreme Court of the United States”; and (2) if, where the requirements of a federal evidentiary hearing are otherwise satisfied but Federal Rule of Evidence 606(b)(1) prohibits consideration of the only evidence in support of a evidence, a court must hold the hearing regardless.
(back on sale after the conferences of September 28 and October 7)

Chinn vs Shoop22-5058
Problems: (1) If a claimant who raises a claim under Brady v. Maryland must establish that it is more likely than not that he was harmed by the government’s suppression of favorable evidence; and (2) whether the judgment of the United States Court of Appeals for the 6th Circuit requiring the petitioner in this case to establish that it was more likely than not that the government’s suppression of favorable evidence had aggrieved should be summarily annulled.
(back on sale after the conferences of September 28 and October 7)