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Supreme Court Adds Layer of Due Diligence: Relists Explained

Jan. 4, 2021, 11:01 AM

Supreme Court practitioners looking for clues about what cases the justices might select to fill out the rest of their docket know to watch for ones set aside for additional consideration.

In recent years, one of the more reliable signals that the justices are interested in hearing a case is when they take up a petition at conference and then hold it over for further consideration.

The relist, as the practice is known, began in 2013 and is meant to give the justices and their clerks a chance to check for procedural obstacles that could prevent them from ruling on the issue they ultimately want to address.

With the first set of relists for 2021 coming up for consideration, Bloomberg Law has put together a primer on this relatively recent addition to the high court’s list of opaque practices.

1. What’s a Relist?

The private conference is a justices-only meeting, which typically occurs on Fridays. The court’s most junior member—Amy Coney Barrett at the moment—keeps notes and answers the door when necessary.

The justices discuss some of the petitions that have been “distributed” for conference among the more than 1,700 they receive each term. The ones they look at have gone through the court’s briefing process, which can involve asking parties for more information.

It takes just four justices to grant certiorari, meaning they’ll hear argument and render a decision.

If there are four votes for cert., the justices typically will relist the petition for another private conference.

It’s thought that during the week between conferences, the court’s clerks will check to see if there are impediments to deciding the ultimate question.

Are there standing issues, or those allowing the suit in the first place, that the lower court overlooked? Problems with the court’s jurisdiction? Have the parties changed their positions since arguing in the lower courts such that the justices should allow them to consider the issue first?

2. Why Did it Start?

Most of the court’s docket is discretionary, meaning that the justices get to pick the cases they want to hear.

The Supreme Court typically agrees to hear fewer than 70 cases each nine-month term. That’s less than 50% of the average opinion output for each court of appeals judges—who hear cases all year—and significantly down from the approximately 150 signed decisions the justices issued as recently as the 1980s.

Every time the high court dismisses a case due to an unforeseen hiccup, it not only lowers that already depleted number, but it also wastes time, money, and resources of the parties and the court.

That’s why relist guru John Elwood, a partner at Arnold & Porter who has argued nine Supreme Court cases, suspects the justices began consistently relisting cases.

Elwood noted in 2014 that just prior to the court’s new relisting practice the justices had dismissed as improvidently granted—or DIG—two cases after briefing and argument. That means they shouldn’t have taken the case to begin with—as big an oversight as the court is prone to make.

The relist “may be akin to a ‘stop, look, and listen’ after a provisional decision to grant—intended to give the Justices and their clerks additional time to review grant candidates for vehicle problems or other concerns,” Elwood said.

3. What’s the Significance?

A majority of cases granted since the court implemented the practice have come from the relist.

One time on the relist greatly improves the chances of a grant, as it signals that the justices are interested in the underlying dispute.

But if a problem is found, they’ll look for another to address the issue.

Importantly, the more times a case is relisted for conference, the more likely it will be denied—often with some kind of opinion from one or more justices.

A relisted case could simply occur to give a justice time to write a separate opinion on the court’s decision to not take it up. That can be a “statement respecting” the court’s decision to deny review, a concurrence with the denial, or even a dissent.

4. Are There Exceptions?

Like all things in the law, yes, there are exceptions. A big one are grants from the so-called long conference. This takes place just before the justices officially kick off their new term in October and considers the petitions that have been piling up over summer.

Presumably these cases have been pending long enough for clerks to check for problems before the first conference.

The justices will occasionally fast-track a petition by not relisting it if it was brought by the U.S. Solicitor General’s Office—the federal government’s top lawyer at the high court and a trusted voice commonly referred to as “the tenth justice.”

And the court may relist cases when time is critical. That happened in a habeas case in 2016 that went from grant to briefing to argument to final opinion in just over three months—lightning speed at the Supreme Court.

5. Is it Hard to Spot a Relist?

To spot a relist just look at the court’s docket. It will have two entries noting that the case was distributed for conference.

For example, the court granted securities case Goldman Sachs Group v. Arkansas Teacher Retirement System on Dec. 11.

Prior to that, the case had been considered at both the Dec. 4 and Dec. 11 conferences. A successful relist grant.

Watch out for “rescheduled” cases. These dockets will often look similar, noting that the case has been considered at multiple conferences. But they’ll have an additional docket entry that simply says “Rescheduled.”

No explanation is given, but any single justice can request that a petition be rescheduled for any reason.

Rescheduled cases are not considered at conference and no vote on whether to grant the case takes place. If the justices eventually decide to grant a rescheduled case it will set the case for at least two more conferences.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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