November 17, 2025, Part 2: Relist Analysis

As I noted in my post earlier today, No. 24-1159, Jeffrey Clyde Pitts v. Mississippi, is the most-relisted pending cert petition at the Supreme Court right now, having been relisted for the seventh time today. The question presented, according to the petition, is as follows: 

"Whether the Confrontation Clause permits the use of a screen at trial that blocks a child witness’s view of the defendant, without any individualized finding by the trial court that the screen is necessary to prevent trauma to the child."

In a stark illustration of the extreme contrast between certiorari petitions and briefs in opposition in the same case, the brief in opposition filed by Mississippi reframes the question presented as: 

"Whether this Court should review the Mississippi state courts’ rejection of petitioner’s Confrontation Clause challenge to his four-year-old daughter’s testimony that he sexually abused her, when the trial proceedings satisfied confrontation’s essential elements, the trial court determined that a screen procedure was necessary to protect the child witness from trauma, and independent evidence—including witness testimony, statements to authorities, and a videotaped forensic interview of the child witness— overwhelmingly established petitioner’s guilt."

Mississippi originally waived its right to respond to this petition, but the Court clearly thought it was important enough that it subsequently called for a response. That response, which was the brief in opposition mentioned above, was filed on July 28, and Pitts's reply brief was filed on August 8. It has now been over three months since then, and the petition has not been granted or denied. 

In addition to the seven relists mentioned above, the Supreme Court also requested that the record be sent up to them from the Supreme Court of Mississippi, which was done electronically. This signals an even higher level of interest in the case than the seven relists (which themselves indicate a significantly higher than usual level of interest).

Most likely, the delays, relists, etc. in this petition suggest one or more justice is attempting to persuade three other justices to agree to grant certiorari and/or working on an opinion dissenting from the denial of certiorari.

If the Court decides to grant or deny this petition, either way, we almost certainly won't find out until a week from now, on November 24, when the Court issues its next scheduled order list. 

In second place for most-relisted pending petition behind Pitts v. Mississippi, it's a five-way tie. There are five petitions that have each been relisted six times. One of these, Neilly v. Michigan, No. 24-395, hasn't had a docket update in months. In other words, the petition is being held pending something else, which almost always means the resolution of another petition or associated case. 

Here, the petition is clearly being held pending Ellingburg v. United States, No. 24-482, in which the Court granted certiorari on April 7, 2025. This is clear from the extreme similarity in the questions presented in the two petitions, both of which pertain to court-ordered restitution and whether it qualifies as "punishment" for purposes of the Ex Post Facto Clause. This dovetails nicely with the fact that the last update on the Neilly docket was on March 31, 2025, just a week prior to the decision to hear Ellingburg. 

So clearly what will happen is that the Court will answer the underlying question when it issues its decision in Ellingburg, and only after that will the Court then resolve the Neilly petition, likely with a GVR in light of Ellingburg. Until then, the latter petition will almost certainly remain weirdly frozen in amber without any new docket entries or updates. We don't know exactly when Ellingburg will be decided, of course, but it was argued last month, so it could be decided at any time. Of course, we expect the calendar on the Court's website will be updated to indicate that the court "may" (really, this means "definitely will") announce opinions on a given date, if indeed it intends to do so.

The other four petitions that have also been relisted six times each are:

1. Kyle Smith v. Rochelle Scott, No. 24-1099. This is a case where the Ninth Circuit denied police officers qualified immunity after they used the weight of their bodies to pin a suspect to the ground long enough to handcuff him. Things went wrong when, a few minutes later, he experienced medical distress, which proved fatal shortly after. The petition claims that Scott "produced two weapons—a metal pipe and a knife—but refused to submit to a patdown and refused other police instructions." The Court also requested and received the record from the lower court in this case, as it did in Pitts. Much of the dispute between the officers (petitioners) and the estate of Scott (respondents) here has turned on whether it was "clearly established" that the officers' use of bodyweight compression for long enough to handcuff a suspect was unconstitutional when they did this to Scott in 2019. The Ninth Circuit had concluded that it was, and this was a major reason why they denied qualified immunity to the officers.
2. Kari Beck v. United States, No. 24-1078. This is a case where the family of a veteran killed in an accident on base wants to sue the government under the Federal Tort Claims Act (FTCA), but can't because of the Supreme Court's past decision in Feres holding that the federal government is immune from such suits based on military veterans' injuries "where the injuries arise out of or are in the course of activity incident to service". Feres v. United States, 340 U.S. 135, 146 (1950). In this case, one day in 2021, Cameron Beck was riding his motorcycle on a military base when he was hit and killed by a civilian employee of the base driving a van. We know that some justices--especially Clarence Thomas--have been very critical of Feres in past dissents from the denial of certiorari. (For a recent example, see No. 23-1281, Carter v. United States, 604 U.S. __ (2025) (Thomas, J., dissenting from denial of certiorari), in which Thomas explicitly wrote, "I hope that this Court will one day overrule Feres.") It seems likely, then, that the delays in this petition are because Thomas is probably working on another such dissent, or perhaps trying to pick up three more votes to grant certiorari.
3. John Doe v. Kathy Hochul, No. 24-1015. A case brought by healthcare workers in New York who are still pissed about the vaccine mandate from early in the COVID-19 pandemic, and think they should have been able to opt out for religious reasons--never mind the serious public health consequences from unvaccinated healthcare workers infecting patients. Their petition claims that the Second Circuit decision below held "that employers could be excused from compliance with Title VII when providing the accommodation for religious beliefs required under Title VII would purportedly violate state law." But as the healthcare respondents explained in their brief in opposition, both questions presented in the petition "are premised on the erroneous assertion that state law forbade the employers from providing any religious accommodation whatsoever. It did not. Rather, state law did not allow complete exemptions on religious grounds. Because state law did not prohibit employers from providing other reasonable accommodations to employees with religious objections, the court of appeals correctly held that state law did not conflict with Title VII and that requiring employers to violate the requirement would impose an undue hardship for purposes of Title VII."
4. National Basketball Association v. Michael Salazar, No. 24-994. A case concerning the Video Privacy Protection Act (VPPA) and whether you can sue successfully for violating the Act if your data was shared with any third party without your consent, or whether it has to be disclosed to the public without your consent. Salazar sued the NBA for disclosing data without his consent to another third party under the VPPA, and he won at the Second Circuit. Naturally, the NBA thinks he shouldn't have been able to win, and wants the Court to reverse the Second Circuit and hold that you can only sue for VPPA violations if the information is disclosed to the public without your consent, and if you are subscribed to a company's audiovisual goods or services (which Salazar was not).