The relist logjam finally breaks

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.

On Friday, the Supreme Court granted what may be its last grants of the October 2025-26 term. All of them were one-time relists: Monsanto Co. v. Durnell, involving preemption of tort claims involving the blockbuster herbicide Roundup under the Federal Insecticide, Fungicide, and Rodenticide Act; Anderson v. Intel Corporation Investment Policy Committee, asking what plaintiffs must show to plead an ERISA breach-of-fiduciary-duty claim; Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., involving the kinds of statements that can render a generic drug maker liable for inducing patent infringement; and Chatrie v. United States, which asks whether law enforcement’s use of a so-called “geofence warrant” to obtain cellphone location-history data violates the Fourth Amendment.

Now on to Tuesday’s orders list. In Tennessee v. Kennedy, the court gave Tennessee the relief it wanted in its case challenging the Department of Health and Human Service’s funding cuts after the dispute became moot when HHS restored those funds: the court vacated the adverse lower-court precedent against the state, a procedure known as Munsingwear vacatur (named after the 1950 case of United States v. Munsingwear, Inc.). Justice Ketanji Brown Jackson, who objects to the court’s propensity to grant such relief, added a one-sentence concurrence explaining that she was willing to “accede to vacatur here” because “mootness occur[red] through the unilateral action of the party that prevailed in the lower court.”

But most of the news from the orders list was bad for petitioners. The court denied review in one-time relist Agudas Chasidei Chabad of United States v. Russian Federation, involving the contours of the Foreign Sovereign Immunities Act’s expropriation exception. And the court denied review in 76 of the 78 relisted cases raising Second Amendment challenges to the prohibition on felons possessing firearms. Curiously, the court has left two such cases on its docket: Vincent v. Bondi and Thompson v. United States. I can’t imagine the prospects for those cases are good, since if there was a realistic chance that the challengers would win relief in either of those cases, the court almost certainly would have held cases raising similar claims so those petitioners would get the benefit of any rule Vincent or Thompson created.

Lastly, we finally got an answer what was going on with the group of cases I had labelled “lost causes” because the court had relisted them even though no party had ever filed an opposition brief, which the court essentially always demands before it will consider granting review. The court stated that the petitioners had “repeatedly abused this Court’s process” by filing frivolous pleadings and thus barred them from using the court’s much-less-expensive in forma pauperis filing procedures in civil (but not criminal) cases. Going forward, this means they’re going to have to pay the $300 filing fee and the high costs of printing booklet briefs. Justice Ketanji Brown Jackson filed an opinion dissenting from that action in Indiana, ex rel. Howell v. Circuit Court of Indiana, Wells County, arguing it was “intolerable” to impose such a restriction on “incarcerated individuals,” because habeas corpus actions challenging detention are civil, and prisoners rarely have the resources to file “paid” petitions.

Now on to the new relists. Mercifully, after the last month of bruising double-digit relist installments, this week we have only one: Salazar v. Paramount Global. The case concerns the Video Privacy Protection Act, a law Congress enacted to protect privacy after reporters sought then-Supreme Court nominee Robert Bork’s video rental records during his bruising confirmation fight. The case asks whether a “consumer” protected under the 1988 statute includes anyone who subscribes to any goods or services from a video provider – like respondent Paramount Global’s free sports newsletter put out by its business 247Sports – or instead only applies to those renting, buying, or subscribing to actual audiovisual content, such as prerecorded cassettes or their modern equivalents. Petitioner Michael Salazar alleges Paramount disclosed his Facebook ID and video-viewing history to Meta without consent after he subscribed to the newsletter and watched some video clips. But the U.S. Court of Appeals for the 6th Circuit affirmed the district court’s dismissal, holding that “consumer” status requires a subscription to video materials, not to unrelated goods or services like a newsletter – explicitly rejecting the contrary holdings of the U.S. Courts of Appeals for the 2nd and 7th Circuits on facts that were virtually identical.

Salazar argues that the decision entrenches a clean 2-2 circuit split over the meaning of “consumer,” with the U.S. Court of Appeals for the 6th and D.C. Circuits narrowing the statute and the 2nd and 7th reading it according to what Salazar calls its “plain text.” Paramount responds that the split is illusory because Salazar’s claims would fail anyway on independent grounds – such as the absence of “personally identifiable information” or because 247Sports is not a covered provider – and that the court recently declined review of closely related VPPA cases. With lower courts openly divided and multiple petitions percolating, it seems likely that the justices will be taking a close look at the case this Friday.

This Friday’s conference is the last one in almost a month. I don’t know about you, but I’m ready for a break.

New Relists

Salazar v. Paramount Global, 25-459

Issue: Whether the phrase “goods or services from a video tape service provider,” as used in the Video Privacy Protection Act’s definition of “consumer,” refers to all of a video tape service provider’s goods or services or only to its audiovisual goods or services.

(Relisted after the Jan. 16 conference.)

Returning Relists

Smith v. Scott, 24-1099

Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21, Dec. 5, Dec. 12, Jan. 9 and Jan. 16 conferences.)

Klein v. Martin, 25-51

Issue: Whether the U.S. Court of Appeals for the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act‘s deferential standard by overturning a state-court decision based on the supposed lack of “nuance” and “exhaustiveness” in the court’s written opinion, rather than the reasonableness of its legal conclusion.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21, Dec. 5, Dec. 12, Jan. 9 and Jan. 16 conferences.)

Vincent v. Bondi, 24-1155

Issue: Whether the Second Amendment allows the federal government to permanently disarm Petitioner, who has one seventeen-year-old nonviolent felony conviction for trying to pass a bad check.

(Relisted after the Nov. 21, Dec. 5, Dec. 12, Jan. 9 and Jan. 16 conferences.)

Foote v. Ludlow School Committee, 25-77