Off the field, off the rails, and off on vacation: The final relists of October Term 2024

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.

Every summer, before the justices leave town for the Supreme Court’s recess, they have one last impromptu conference to consider – and usually dispose of – all the cases relisted after their last scheduled conference (which this year happened on June 26). This is known colloquially as the “mop-up” conference. In past years, the court has quietly added a small green marker to its online calendar to note that day has become a “conference” day. 

The court still hasn’t noted such a conference on the online calendar available on its homepage. But the court has indicated it will be releasing orders this Thursday, July 3. And there are 11 cases that were scheduled for the June 26 conference that the court still hasn’t acted on.

There’s some chance that the court will just kick these 11 cases over to the next scheduled conference on Sept. 29 – the so-called “Long Conference” at the end of the summer break. But my best guess is that those cases have been relisted and will be disposed of on July 3; it’s unclear what other orders there would be to issue otherwise. Given the shortness of time and the large number of cases, we’ll have to be fairly summary.

Potential blockbuster transgender sports cases

Three petitions now pending before the Supreme Court could tee up what might be the most high-profile culture war clash since Dobbs v. Jackson Women’s Health Organization: the constitutionality of state laws excluding transgender athletes from girls’ and women’s sports teams. The petitions in the cases were filed by West Virginia, Idaho, and a group of Arizona officials, each defending their state’s version of a “Save Women’s Sports” Act. They are supported by 26 states as “friends of the court.” Opposing review are transgender athletes identifying as female who challenge these laws on equal protection grounds (and in one case, also under Title IX of the Civil Rights Act, which prohibits sex discrimination in federally funded education programs), arguing that categorical bans on their participation in school sports consistent with their gender identity are unlawful.

The cases – West Virginia v. B.P.J., Little v. Hecox (involving Idaho), and Petersen v. Doe (Arizona) – present variations on a theme: whether states may exclude transgender athletes from girls’ and women’s teams based on the sex that they were assigned at birth, regardless of medical transition status or athletic ability. Lower courts enjoined each of the laws as applied to the individual athletes, who range in age from middle school to college, citing equal protection concerns and, in the case of middle-schooler B.P.J., Title IX. The states and state officials, supported by the state “friends of the court,” insist these laws are necessary to preserve fairness in girls’ and women’s sports and to prevent domination by transgender athletes. The transgender athletes counter that the record is remarkably thin on any actual competitive advantage in their individual cases.

What makes these petitions worth watching isn’t just their hot-button subject matter, but also their potential for doctrinal impact. The courts below applied heightened scrutiny under the equal protection clause and were generally unimpressed by the states’ justifications, particularly given the plaintiffs challenged application of the law only in their own cases, and not broadly too all transgender athletes. The states urge the court to recognize either that (1) these laws are constitutional as a matter of course because sex-based athletic classifications pass intermediate scrutiny, or (2) that transgender status isn’t a quasi-suspect class at all, an issue the Supreme Court dodged in its recent decision in United States v. Skrmetti. In that case, the court applied rational-basis review, the least rigorous constitutional test, to conclude that a Tennessee law prohibiting gender-affirming care classified based on age and medical use, not sex or transgender status. West Virginia and Idaho argue that, given the narrowness of the ruling in Skrmetti, there’s no point in remanding their cases for reconsideration in light of that decision.

If the court decides to weigh in, it must decide on a vehicle. The West Virginia case presents an additional question (the Title IX question). Or perhaps the court will kick the can down the road by calling for the federal government’s views. But that itself presents a (minor) issue: U.S. Solicitor General D. John Sauer would be recused from the Arizona case, since he represented the state legislators in filing the petition and reply.

You know an issue is a hot-button one when it pushes our next topic to the #2 spot.

Abortion

Montana v. Planned Parenthood of Montana involves the state’s Parental Consent for Abortion Act, which requires notarized parental consent for minors’ abortions. The Montana Supreme Court struck the statute down on the ground that it violates minors’ state constitutional rights to privacy and equal protection. The state argues the law protects parents’ fundamental federal right to direct their children’s medical care. Although the court agreed that the state has a compelling interest in protecting minors from their immaturity and making sure that their decisions are fully informed, it concluded that the law was not drawn to advance only that purpose, because it “allows parents to refuse consent not only where their judgment is better informed and considered than that of their daughter, but also where it is colored by personal religious belief, whim, or even hostility to her best interests.”

The state alleges that the lower courts are divided over whether parental rights under the 14th Amendment extend to controlling minors’ medical decisions, including abortion. In layman’s terms, the case is about whether parents have a constitutional right to decide on their minor child’s abortion or if a minor’s privacy rights can override that. Planned Parenthood says the state never presented that argument below and so the claim is forfeited. For a fuller preview, see here.

Three cases addressing sovereign immunity for state instrumentalities

Missouri Higher Education Loan Authority v. Good. Jeffrey Good sued the Missouri Higher Education Loan Authority (MOHELA) under the Fair Credit Reporting Act for failing to correct errors on his credit report. The U.S. Court of Appeals for the 10th Circuit rejected MOHELA’s argument that it’s an arm of the state entitled to 11th Amendment immunity, citing its financial independence and operational autonomy from the state. MOHELA, supported by “friend of the court” briefs filed by the state of Missouri and 19 other states, argues that the ruling conflicts with decisions of circuits that de-emphasize state treasury liability and disregard corporate attributes like the ability to sue or own property.

Galette v. New Jersey Transit Corporation and New Jersey Transit Corporation v. Colt are a matched set of cases involving a car passenger and pedestrian, respectively, injured in separate accidents. Both cases ask whether NJ Transit – a state-run transportation agency – can claim sovereign immunity from tort suits brought in other states’ courts. The Pennsylvania Supreme Court (in Galette) said yes, emphasizing NJ Transit’s public function and state government control. The New York Court of Appeals (in Colt) said no, pointing to a lack of direct fiscal liability to New Jersey’s treasury.

In Galette, New Jersey Transit agrees the Supreme Court should take the case. It is supported by a “friend of the court” brief – an extremely rare step for the party that won in the lower court – filed by 22 states, urging the justices to grant review. The plaintiffs and the states claim that courts are all over the place in applying sovereign immunity to various state instrumentalities. But in Colt, respondents Jeffrey Colt and his wife Betsy Tsai, represented by the Stanford Law School Supreme Court Litigation Clinic, argue that there is no conflict worthy of the court’s review, and the decision below was correct. So far, pretty normal stuff for a brief in opposition. But then the brief says that if the court disagrees, it shouldn’t just grant review in Galette: “It should instead either grant … review in both cases or only this one.” Meanwhile, Cedric Galette argues that his case is better than both Good and Colt.

It seems quite likely that the court takes at least one of these cases; the bigger question is which one(s).

Two cases challenging application of Heck v. Humphrey

In Wilson v. Midland County, Texas, Erma Wilson sued under 42 U.S.C. § 1983, which gives individuals the right to sue state and local government officials for civil rights violations. She alleged that her constitutional right to due process had been violated when a Midland County prosecutor, also then serving “as the presiding judge’s law clerk,” tainted her 2001 drug conviction, which derailed her nursing career.

The full U.S. Court of Appeals for the 5th Circuit dismissed her claim, though it didn’t contest that the misconduct was “bonkers” and a “DEFCON-1” level scandal. It cited Heck v. Humphrey’s rule that people cannot use Section 1983 to challenge a conviction unless it has previously been invalidated, although Wilson had already served her (non-custodial) sentence and thus could no longer challenge her conviction through federal habeas (although she could have a state court remedy). Wilson argues that there is a division among the courts of appeals over whether plaintiffs unable to use 28 U.S.C. § 2254 because they’re no longer in custody can sue under Section 1983 without first overturning their convictions in state court. In layman’s terms, this case is about whether someone wrongfully convicted but no longer in custody can sue for damages in federal court without first clearing their name through state processes.

Olivier v. City of Brandon, Mississippi presents a related issue. Gabriel Olivier is a Christian who was fined for what he calls peacefully “shar[ing] his faith” and what the city characterizes as participating in a group calling passersby “derogatory names over a loudspeaker” while displaying graphic photos of aborted fetuses. Olivier was fined under a city ordinance for protesting near a popular amphitheater outside a designated protest zone.

Olivier is suing to block future enforcement of the ordinance, claiming it violates his First Amendment rights. But the 5th Circuit held he’s out of luck: Because he pleaded no contest and was convicted under the law, the court held that he’s barred under Heck v. Humphrey from seeking damages or even purely prospective relief. Olivier says that holding deepens a clean circuit split with the U.S. Courts of Appeals for the 9th and 10th Circuits letting similar forward-looking claims proceed. His case has drawn a remarkable 11 “friend of the court” briefs urging review and emphasizing the importance of the issue.

And the rest