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.
After two weeks without a conference, the justices return Friday to a relist lineup with a distinctly Southern accent. Four newly relisted cases come from Alabama. Three concern the same congressional district map and its seemingly inexhaustible capacity to generate Supreme Court litigation. The fourth asks whether using a car makes an otherwise local kidnapping a federal crime – even when the car never crosses a state line.
Redistricting redux
The Supreme Court’s long-running dispute over Alabama’s congressional districts is back for yet another round. Three related relists – Allen v. Milligan, Allen v. Singleton, and Allen v. Caster – ask the justices to revisit a congressional district map they have already considered several times. Readers may recall that in 2023, the court upheld a preliminary injunction against Alabama’s 2021 congressional map because the challengers were likely to succeed on their claim that it unlawfully diluted Black voting strength under Section 2 of the Voting Rights Act. Alabama responded by drawing a new map that, like its predecessor, contained just one district in which Black voters had an opportunity to elect their preferred candidates.
After an 11-day trial, a three-judge district court found in 2025 that the replacement map violated both Section 2 and the 14th Amendment’s prohibition against intentional racial discrimination. But this spring, the Supreme Court changed the standards for Section 2 liability in Louisiana v. Callais and vacated the district court’s judgment for reconsideration. In the wake of that decision, the district court revisited the record and reached substantially the same conclusions that it had previously, issuing another preliminary injunction against the 2023 map. On June 2, the Supreme Court stayed that injunction, concluding that Alabama had shown a likelihood of success on the merits. That cleared the way for Alabama to use its preferred map in this week’s congressional elections.
Redistricting cases are among the rare types of cases over which the Supreme Court still has mandatory appellate jurisdiction. Alabama now seeks to appeal in Milligan and Singleton, and certiorari before judgment in Caster, the appeal of which is pending in the 11th Circuit. Alabama argues that the district court failed to follow Callais by disregarding the state’s legitimate redistricting priorities, particularly keeping Mobile and Baldwin Counties together as a Gulf Coast community of interest and protecting incumbents. It also contends that the district court wrongly attributed voting patterns to race rather than politics and failed to respect the presumption of legislative good faith. Alabama asks the justices to summarily reverse or, alternatively, take the cases for full review.
The challengers see things differently. They lead with mootness. In their motion to dismiss or affirm in Milligan, their motion to dismiss in Singleton, and their response in Caster, they argue that the injunction covers only the 2026 elections, which are underway using the 2023 plan, so that no live controversy remains. The Singleton plaintiffs note that the district court has scheduled trial for early 2027. Alabama responds that the injunction could continue to have legal effects, that election administration extends beyond Election Day, and that the requirement to use the court-drawn map may remain in force until Alabama adopts a new plan.
In Milligan and Caster, the challengers argue that the district court properly found the state’s asserted priorities were rationalizations for intentional discrimination. They point to legislators’ use of racial data, the removal of the city of Selma from Congressional District 2 “to ensure that Black voters there were ‘utterly unable to elect a representative of their choice,’” and unusual last-minute legislative findings “inserted into the bill on the morning of passage.” They maintain that Callais did not overrule the Supreme Court’s earlier Milligan decision and does not undermine the district court’s findings of intentional discrimination.
The justices’ June stay suggests that Alabama may have a receptive audience for its merits arguments. Whether the justices will reach those arguments – or conclude that no live controversy remains over the preliminary injunction – is less certain. Whatever happens, it seems unlikely that we’ve seen the last of Alabama’s congressional maps.
The Commerce Clause goes for a spin
How can a car trip that never leaves Alabama become a matter of interstate commerce? That’s the question in Brown v. United States, which asks whether every automobile is automatically an “instrumentality of interstate commerce,” regardless of how it is used. The answer determines whether the federal government can prosecute a kidnapping committed entirely within one state based solely on the kidnapper’s use of a car.
In 2019, Derick Brown and her boyfriend abducted a three-year-old girl, driving her in Brown’s Toyota Sequoia from Birmingham to nearby Center Point, Alabama. The child was subsequently found dead. A federal jury convicted Brown of kidnapping (resulting in death) and conspiracy to kidnap, and she received a life sentence. The federal kidnapping statute, as amended in 2006, reaches kidnappings committed using “any means, facility, or instrumentality of interstate or foreign commerce.” Brown argued that using a car for a kidnapping committed entirely within Alabama, however, did not supply the interstate-commerce connection necessary for a federal prosecution. The U.S. Court of Appeals for the 11th Circuit rejected Brown’s statutory and constitutional arguments, relying on its recent decision in United States v. Bryan holding that automobiles are per se instrumentalities of interstate commerce, even when used entirely within a single state.
Brown argues that the 11th Circuit’s rule would give Congress virtually unlimited authority over activities involving automobiles – potentially including everything from kidnapping to parking violations. More importantly for certiorari purposes, she identifies a circuit split. In United States v. Chavarria, she argues that the U.S. Court of Appeals for the 10th Circuit rejected the proposition that motor vehicles are automatically instrumentalities of interstate commerce with regard to the federal kidnapping statute. Judge Victoria Calvert dissented in Bryan, warning that the majority had placed the 11th Circuit on the “wrong side of a developing split.” Georgetown law professor Randy Barnett and the Cato Institute filed amicus briefs supporting Brown, emphasizing the original limits of Congress’ commerce power.
The U.S. solicitor general responds that automobiles are instrumentalities of interstate commerce because they use highways, which are channels of interstate commerce, much as airplanes use airspace and railroad cars use railroads. Congress therefore may regulate their use even when the particular trip is entirely intrastate. The government also disputes the existence of a circuit split. It maintains that Chavarria held only that the broader category of “motor vehicles” – which can include lawnmowers, elevators, and motorized wheelchairs – is not invariably an instrumentality of interstate commerce. Brown calls that distinction “mere wordplay,” pointing out that the vehicle in Chavarria was a Jeep Cherokee, not a lawnmower.
We’ll be back next week to see whether the justices are ready to act – or whether these cases need another trip around the conference table.
New Relists
Brown v. United States, 25-1342
Issue: Whether an automobile is per se an instrumentality of interstate commerce, which would make a federal offense of every kidnapping involving an automobile under 18 U.S.C. § 1201(a)(1).
(Relisted after the Oct. 16 conference.)
Allen v. Caster, 26-116
Issues:(1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.
(Relisted after the Oct. 16 conference.)
Allen v. Milligan, 26-117
Issues: (1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.
(Relisted after the Oct. 16 conference.)
Allen v. Singleton, 26-118
Issues: (1) Whether the district court erred by not requiring plaintiffs to offer an alternative map that performed just as well as the state’s map with respect to the state’s districting criteria; (2) whether the district court erred by finding racial-bloc voting without accounting for politics; (3) whether the district court erred by finding that the totality of circumstances suggests an objective likelihood of discrimination; and (4) whether the state violated the 14th Amendment by declining to draw a race-based plan.
(Relisted after the Oct. 16 conference.)
Returning Relists
Khatibi v. Yip, 25-1240
Issue: Whether private instruction in courses required for state licensure constitutes government speech.
(Relisted after the Sept. 28, Oct. 9, and Oct. 16 conferences.)
Moore v. Romero, 25-1295
Issues: (1) Whether, in a use-of-force case which involves multiple instances of force, Barnes v. Felix requires that each use-of-force be analyzed progressively from before the first instance of force used through the last instance of force used, considering the information known to the officer, the suspect’s prior actions (including any compliance, non-compliance, resistance, and reaching or grabbing for a weapon), and the suspect’s reactions to those prior use(s)-of-force, and, if so, whether Officers Moore and Kurtz violated Stephen Romero’s constitutional rights under this standard; and (2) whether, when analyzing a defendant law enforcement officer’s motion brought under Rule 12(b)(6) or 12(c), in a use-of-force case where body camera video clearly depicts the entire lead-up to and application of force by a law enforcement officer, the lower courts may analyze the clearly established prong of qualified immunity at a more general, plaintiff-friendly, level than at the motion for summary judgment stage of litigation and, if not, whether Officer Moore and Officer Kurtz are entitled to qualified immunity under the facts of this case.
(Relisted after the Sept. 28, Oct. 9, and Oct. 16 conferences.)
City of Bossier City v. Hershey, 25-1323
Issues: (1) Whether a plaintiff can plead single-incident municipal liability without alleging a violation of a clearly established constitutional right; and (2) whether a plaintiff can plead single-incident municipal liability without alleging a complete lack of training on the constitutional right in question.
(Relisted after the Sept. 28, Oct. 9, and Oct. 16 conferences.)
Hershey v. City of Bossier City, 25-1389
Issue: Whether the principles of Hope v. Pelzer are limited to Eighth Amendment claims or extend to free speech and free exercise clause claims such that petitioner’s constitutional claims should not be barred by qualified immunity.
(Relisted after the Sept. 28, Oct. 9, and Oct. 16 conferences.)
StandWithUs Center for Legal Justice v. Massachusetts Institute of Technology, 25-1404
Issues: (1) Whether the harassers’ subjective discriminatory intent is an element of a hostile environment claim under Title VI; and (2) whether the First Amendment bars a plaintiff from pleading a Title VI hostile environment claim based on “protected speech.”
(Relisted after the Sept. 28, Oct. 9, and Oct. 16 conferences.)
Goldman Sachs Bank USA v. Brown, 25-1408
Issue: Whether, and under what circumstances, a bankruptcy court may override the Federal Arbitration Act and refuse to honor a valid arbitration agreement with respect to Section 362(k) claims.
(Relisted after the Sept. 28, Oct. 9, and Oct. 16 conferences.)
Bauer v. Marks, 25-1413
Issue: Whether the law clearly established that the officer’s use of a less-lethal projectile, under the totality of the circumstances, constituted an unreasonable use of force in violation of the Fourth Amendment.
(Relisted after the Oct. 9 and 16 conferences.)
Clemente Properties, Inc. v. Pierluisi-Urrutia, 25-1426
Issues: (1) Whether the Fifth Amendment exempts intangible property from the per se rules that govern takings of tangible property; and (2) whether Puerto Rico enjoys any form of immunity from suit in federal court and, if so, whether the Lanham Act abrogates that immunity.
(Relisted after the Oct. 9 and 16 conferences.)
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[ H/T SCOTUSblog ]
