Legal Commentary

Supreme Court Relist Watch

By John Elwood

I am aware of four new relists today in paid cases.  Those include:

?the three Maxwell-Jolly cases, viz., Maxwell-Jolly v. Independent Living Center of Southern California, 09?958, Maxwell-Jolly v. California Pharmacists Assn., 09?1158, and Maxwell-Jolly v. Santa Rosa Memorial Hospital, 10?283. All are from the Ninth Circuit, and all involve questions arising under 42 U.S.C. § 1396a, a provision governing state plans for medical assistance under the Medicaid Act. The Court CVSG?d in 09?958 and the SG recommended denial, and the Court may need more time to sort through the implications for all the cases.

-Sheets v. Simpson, 10?458, from the Sixth Circuit, which presents two questions: (1) Whether a prison inmate is in ?custody? for Miranda purposes if law enforcement officers isolate and question him about criminal conduct occurring outside the prison but impose no additional restraints or coercive pressures beyond those inherent in ordinary prison confinement; and (2) whether a police officer violates clearly established Miranda law by advising a defendant who asks him whether a polygraph examination will confirm the veracity of the defendant?s statements that defendant will not have any trouble if his statements are truthful, but that he should terminate the examination and consult an attorney if he is lying.

In addition, looks like Swartout v. Cooke, 10?333, discussed here, has been relisted a second time.  Looks like the much-relisted Beer v. United States, 09?1395, and Ryan v. Schad, 10?305, are now better deemed ?holds? now; the last docket entry for both is the 12/3/10 Conference.  Anyone care to speculate what is going on with those?

The Court on Friday granted in Lafler v. Cooper, 10?209, CA6, and McNeill v. United States, 10?5258, CA4, both discussed here. 

Finally, the relist vigil in Alderman v. United States, 09?1555, ended today after seven relists, with a dissent from denial of cert authored by Justice Thomas and joined (except for a single footnote) by Justice Scalia.  They argued (correctly, I think) that the Court?s more recent Commerce Clause precedents (United States v. Lopez, United States v. Morrison, etc.) conflicted with dicta in Scarborough v. United States, 431 U.S. 563 (1977), which lower courts had relied on in upholding the federal prohibition on felons possessing body armor, and said (correctly, I think), ?[i]t is difficult to imagine a better case for certiorari.?  (But as noted from the outset, I worked on the case.)  I was a little surprised that they were not joined by Justice Alito (who is #2 this Term in numbers of dissents from denial of cert).

Full post as published by The Volokh Conspiracy on January 10, 2011 (boomark / email).