Reader AS directed me over to a post at the Volokh Conspiracy that discusses cert. petitions that have been "relisted" in the Supreme Court. Several of these are habeas cases, including a case called Williams v. Hobbs, that I am going to talk about more in a second.
But before I mention anything about these specific "relisted" cases, I actually thought I'd dig into what exactly it means for a case to be "relisted." This really is advanced Court watching stuff. On one level, it's pretty apparent what it means - the cert. petition has been added to the list for an upcoming conference after the Court did not act on it when it was submitted to a prior conference.
But there is far more to it than that. I was able to dig up this 1995 article in the deepest corner of the internet that does a fairly good job of explaining the history of the "relist," how a "relist" happens, and why.
"Relisting" appears to have begun in the 1970's. According to the article, "Any justice for any reason at any stage of the Court's decisional process may have a case held over until the Court's next conference. Repeated requests either by the same or different justices are permitted."
In the past, it was believed that the main purpose of the relist was for a Justice to bide some time to try and gain enough votes for a cert. grant. Or, maybe, I guess, to try and convince other judges who want to grant cert. to change their minds. Additionally, the relist can be used to gain some time to write a dissent to a denial of cert. Another reason for a relist is to gather more papers in the case. Or a case could be held over because there are other cases in the pipeline raising similar issues and the judges want to hold onto a petition to let those other cases ripen.
Aside from these, there is now one other really important reason for the relist - the summary reversal. Under the Roberts Court, the number of summary reversals clearly has increased, and that was especially true last term.
A good example from last term is the case of Sears v. Upton. It was relisted numerous times. It was relisted so many times I wonder if it was some kind of record. In the Volokh Conspiracy post, it suggests that, as a case gets relisted more times, it can be expected that there will either be a dissent from a denial of cert. or a summary reversal. E.g., Sears ended up as a summary reversal.
So a number of relists can indicate that the Court is preparing a substantive summary reversal. That's a big deal.
At the other end, in some situations, it never becomes clear why a case got relisted. For example, last term a case called Ryan v. Libberton also got relisted. However, after the relist, cert. was denied without a dissent.
One thing to watch for when there has been a relist is whether the Court asks for the lower court record. That is a strong indication that something is happening. That happened in Sears.
So what does it all mean? Well, the relist is a real part of the Court's practice. If a case gets relisted once, it can mean a host of different things, ranging from a summary reversal to nothing more than a cert. denial. Repeated relists probably means that something substantive is happening in the case.
One big problem with relists, though, is that they aren't listed anywhere, as far as I know. It takes close Court watchers (like those at the Volokh Conspiracy) to catch them. And that takes (a) a lot of knowledge about what petitions are currently pending and (b) a bunch of word-of-mouth.
And I also have one other question: does a relist necessarily have to happen before a dissent from denial or a summary reversal occurs? That I can't say. And does a case that gets relisted automatically get put on the list for the next conference? I also can't say.
What brings me to ask these things is a case I have talked about around here before: Maples. According to the Court's docket, that case was distributed for the long conference on September 27 and then . . . nothing. No decision, no request for the record, no relist (even though there has been two conferences afterwards). It's safe to say that something is probably happening in that case. But there has been no official relist. Without a relist, can it be a summary reversal of a dissent from denial? I just don't know.
Of course, it would seem that it has to get relisted at some point. The next conference is October 29, so maybe something will happen before then. And, as I look at the docket in Sears, there was nearly a month-long gap between its original conference (March 19) and the relist (April 16). I don't know if there were any conferences in between the first one and the second one in Sears. That is an active time for the Court, but there is also a break in conferences around Easter. So I can't say either way. But maybe, like Sears, Maples will be relisted after a gap in time.
The big difference between the two is that the Court asked for the record in Sears but not in Maples. Does that mean we are looking at a dissent from a denial of cert. as opposed to a summary reversal? Once again, I have no idea.
Another possibility is that they are just holding Maples pending action in some other case. But I don't know which case that could be. But still a possibility.
It's kind of fun to speculate about these things. I guess that's the true joy of the mystery of the relist.
Since this post is going on much longer than expected, let me move my discussion of the current relists below the fold . . .
Here are the current habeas relists (at least those that the Volokh Conspiracy knows about):
(1) Wong v. Smith; (2) Williams v. Hobbs; (3) Allen v. Lawhorn; (4) Wilson v. Corcoran
The post provides the issues in those cases.
First, let me briefly take issue with one aspect of the post. It says that three of the cases (WIlliams, Lawhorn, and Corcoran) are on for their third relist. I don't think that's true. I guess it depends on how we define "relist." But to me, it should mean: how many lists has it been placed on after its first conference. Defined that way, then those three are on their second "relist."
On the other hand, because they were not acted upon on Monday (after their second relist), we can expect that they will be relisted again, making them all three-time relisters. But I think, technically, we should wait until that happens before we say that they are three-timers. Or else, if we are counting the potential future relist, then Maples should be on this list of relisters.
Further, the post seems to indicate that Smith has been relisted one less time than the other three. But according to the docket sheet, it has been relisted the same number of times as the other cases.
In other words, all four of the habeas cases have been relisted the same number of times. Under my definition, that would be twice.
What can we surmise about what is happening in these cases?
In two of the cases, Smith and Corcoran, the Court has asked for the record. In my mind, that's a strong indication that we are looking at a summary reversal in those cases. Bad news for habeas petitioners since it was the State who sought cert. in those cases.
As for the other two, the records were not requested. I am not sure that rules out a summary reversal, but it would seem to make one less likely.
Let me now focus on Williams. This case has one truly exceptional aspect to it - an awe-inspiring amicus.
The issue in the case is simple: was it appropriate for the 8th Circuit to raise a procedural defense sua sponte that the State did not raise in the district court? The procedural defense was whether it was appropriate to order an evidentiary hearing. The State did not object to the hearing and the district court held one.
Reader AS forwarded me the amicus that was filed in that case. The docket describes it as an amicus from "Scholars of Habeas Law." That is an understatement. The amicus was joined by some of the heaviest hitters in habeas - Chemerinsky, Freedman, Hertz, Liebman, Robbins, Yackle. It's a little jaw-dropping for me. A habeas dream team.
They make a compelling argument that cert. should be granted in the case. They basically argue that the Eighth Circuit's actions were pretty absurd -- raising a defense sua sponte at the appellate level after the lower court actually held the hearing. Big time waste of judicial resources. And pretty much contrary to how a majority of courts around the country have treated procedural defenses in habeas cases.
But is this enough to get a summary reversal? That seems unlikely. In the first instance, I don't think the Scholars were even trying to make that claim. I haven't seen the main brief, but I am assuming that petitioner wasn't pushing for it either. Unless the Court comes up with a new type of summary reversal, I just don't see a ground for it.
Of course, maybe I shouldn't say that without reading the main petition. It could be that there is something more definitive in some Supreme Court decision about the inappropriateness of raising this type of defense sua sponte. It wasn't in the Scholar's brief, so I doubt it. But it could be the case.
It could also be that the Eight Circuit's actions are just so absurd on their face that the Court would find this to be such an easy case that it just wants to jump right to the reversal. I hope so and the Scholars did a compelling job of showing how absurd this was. It would be an atypical summary reversal, but maybe that's what will happen. On the other hand, it seems odd for that to happen without the lower court record (to confirm that the defense was never actually raised). But if the facts are not in dispute, then maybe the record isn't necessary.
In the end, it's all just speculation. Why a case gets relisted will remain cloaked in mystery until the Court decides the petition.