Relisting

Habeas Corpus - The Mystery of the Relist

"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.