RELIST WATCH
on Mar 20, 2025
at 2:34 pm
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.
The Supreme Court is hitting its stride in sorting through the relists. At its last conference, it granted review of a one-time relist asking whether federal courts must follow state law requiring medical malpractice claims to be supported by an expert affidavit. The court also agreed to take up a twice-relisted challenge to Colorado’s ban on “conversion therapy.” And because the resolution of that case may have broader implications for states’ ability to regulate the speech of professionals, the court is now holding two twice-relisted cases that raise First Amendment challenges to state occupational licensing laws.
But the court denied review last week in a case that sought to invalidate the burden-shifting framework that has long governed employment discrimination cases. As is frequently the case when the court denies review in cases that have been relisted repeatedly, denial occasioned dissent, this time from Justice Clarence Thomas, joined by Justice Neil Gorsuch. Thomas wrote that lower court decisions reflect “widespread misunderstandings” about the burden-shifting framework, and that its application “is producing troubling outcomes on the ground.”
The court also denied the motion by Alabama and 18 other states to bring a case against California and four other states directly in the Supreme Court to block a series of lawsuits against fossil fuel producers, saying that those suits impermissibly sought to “dictate interstate energy policy through the aggressive use of state-law tort suits.” Thomas again dissented, joined by Justice Samuel Alito, repeating their oft-stated view that “the Court’s assumption that it has discretion to decline review in suits between States is suspect at best.”
This week’s sole new relist isn’t really a new relist. Indeed, it is making its third appearance in this column. It’s an unusual criminal petition in that the prosecution also thinks the defendant’s conviction should be reversed.
Areli Escobar was convicted in a Texas state court of the sexual assault and murder of Biana Maldonado Hernandez and sentenced to death. Escobar’s defense later uncovered that the DNA evidence used in the case was compromised due to serious forensic misconduct at the Austin Police Department’s lab. After the Texas Forensic Science Commission’s audit led to the lab’s shutdown, Escobar filed a second habeas petition, citing the use of unreliable, misleading, and false DNA evidence in violation of Napue v. Illinois. The trial court recommended vacating the conviction due to a “reasonable likelihood” that the flawed DNA evidence affected the jury’s decision.
But the Texas Court of Criminal Appeals – the state’s highest court for criminal cases – rejected the trial court’s findings, insisting that the revised DNA analysis still pointed to Escobar’s guilt and citing other inculpatory evidence, such as Escobar’s bloody fingerprint and inconsistent alibi. Meanwhile, the newly elected Travis County District Attorney, who campaigned against the death penalty, confessed error and joined Escobar’s call for a new trial.
On Escobar’s first trip to the Supreme Court, it vacated the court of criminal appeals’ denial of post-conviction relief and remanded the case for reconsideration in light of the state’s confession of error – an action known as a “GVR.”
But on remand, the Texas Court of Criminal Appeals again denied relief, explaining that the state’s position on certiorari “add[s] nothing to what we were already aware of when we [previously] denied relief.” It still concluded that Escobar failed to show a violation of his right to fair treatment and procedures and that the “evidence that has been shown to be false is not material because there is no reasonable likelihood that the outcome would have changed if the false evidence had been replaced with accurate evidence.”
This time around, Escobar argues in the Supreme Court that the Texas court only gave lip service to the justices’s GVR order, arguing that the lower court frustrated the state’s ability to explain why it no longer would defend the conviction by limiting supplemental briefing. And Escobar argues that contrary to the state court’s conclusion, the use of the false DNA evidence at trial violated his right to fair treatment and procedures because it was material to the guilty verdict. Escobar is supported by “friend of the court” briefs filed by the American Bar Association and former state attorneys general and other prosecutors. And once again, José Garza, the Travis County district attorney, has filed a brief supporting the petition. But Texas Attorney General Ken Paxton, representing the Correctional Institutions Division of the Texas Department of Criminal Justice, has filed an unusual “friend of the court” brief opposing relief, arguing that the case is “fact-bound, procedurally flawed, and Texas-law-focused.”
When the case arrived at the Supreme Court, Escobar argued that his case “presents the same question as Glossip v. Oklahoma,” which the court had decided to review and was then in the briefing process. Escobar argued that as in Glossip (in which the state also confessed error), “due process of law requires reversal[] where a capital conviction is so infected with errors that the state no longer seeks to defend it.” The court relisted Escobar back in June 2024 and has been holding it ever since, pending the resolution of Glossip.
The Supreme Court ruled in favor of Richard Glossip in late February, holding that the prosecution there violated its constitutional obligation under Napue to correct false testimony. The justices sent the case back to the state courts for further evidentiary proceedings to determine if the prosecutor’s failure to correct the false testimony could have contributed to the jury verdict.
The court then requested and received the record from the Texas Court of Criminal Appeals in Escobar’s case. The relist this week suggests the justices still need time to figure out what to do here.
New Relists
Escobar v. Texas, 23-934
Issues: (1) Whether due process of law requires reversal, where a capital conviction is so infected with errors that the state no longer seeks to defend it; (2) whether the Texas Court of Criminal Appeals erred in holding there was no due process violation because there is “no reasonable likelihood” that the prosecution’s use of admittedly false, misleading, and unreliable DNA evidence to secure petitioner’s capital conviction could have affected any juror’s judgment.
(Relisted after the May 30, 2024 and Mar. 7, 2025 conferences.)
Returning Relists
Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28 and Mar. 7 conferences.)
Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28 and Mar. 7 conferences.)
Snope v. Brown, 24-203
Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28 and Mar. 7 conferences.)
Franklin v. New York, 24-330
Issues: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28 and Mar. 7 conferences.)
L.M. v. Town of Middleborough, Massachusetts, 24-410
Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21, Feb. 28 and Mar. 7 conferences.)
Neilly v. Michigan, 24-395
Issue: Whether restitution ordered as part of a criminal sentence is punishment for purposes of the Constitution’s ex post facto clause.
(Relisted after the Feb. 28 and Mar. 7 conferences.)
Ellingburg v. United States, 24-482
Issue: Whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution’s ex post facto clause.
(Relisted after the Feb. 28 and Mar. 7 conferences.)
Shockley v. Vandergriff, 24-517
Issue: Whether the U.S. Court of Appeals for the 8th Circuit erred in denying petitioner’s application, over dissent, to appeal the denial of his Sixth Amendment ineffective assistance of counsel claims.
(Relisted after the Feb. 28 and Mar. 7 conferences.)