what's up in the united states supreme court?

This article is now current through May 19, 2019.
We will be updating it soon – usually every 1-2 weeks.


Why use our issues list instead of the Court's?

Unlike the U.S. granted/noted listings, the issues below are sorted by topic, include all pending cases, and include only those cases of interest to appellate counsel in the areas of criminal, juvenile, & dependency law. (Please note, we do not include death penalty cases that target death penalty-related issues only, such as penalty phase questions.)


Cases/Issues Currently Pending:

The cases pending are grouped by topic category and subcategory, using the same topics utilized in The Search page. Their use here extends the single platform approach in that it allows the user to cross-reference briefs, recently decided cases included in the case summaries, victories, and cases currently on review in the United States Supreme Court.

HOW TO SEARCH FOR CASES BY NAME: Use the Show All button below, then use your browser's "Find" feature. For example, for Firefox® and Internet Explorer®, you can use "Control-F" to pop up the "Find" box.


Areas of Constitutional Law
Updated: 6/28/2018 Double Jeopardy Clause--Overrule "Separate Sovereigns" Exception?

Whether the Court should overrule the "separate sovereigns" exception to the Double Jeopardy Clause. (United States v. Gamble (11th Cir. 2017) 694 F.App'x 750, cert. granted 6/28/2018 (17-646).) [Editor's Note: In the decision below, the Eleventh Circuit stated that "[t]he Supreme Court has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns. Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 3 L Ed.2d 729 (1959)."]

Batson / Wheeler
Updated: 11/2/2018 Batson Violation Where There is a History of Purposeful Race Discrimination in the Case

Petitioner Curtis Flowers has been tried six times for the same offense in Mississippi state court. Through the first four trials, prosecutor Doug Evans relentlessly removed as many qualified African American jurors as he could. He struck all ten African Americans who came up for consideration during the first two trials, and he used all twenty-six of his allotted strikes against African Americans at the third and fourth trials. (The fifth jury hung on guilt-orinnocence and strike information is not in the available record). Along the way, Evans was twice adjudicated to have violated Batson v. Kentucky--once by the trial judge during the second trial, and once by the Mississippi Supreme Court after the third trial.

At the sixth trial Evans accepted the first qualified African American, then struck the remaining five. When Flowers challenged those strikes on direct appeal, a divided Mississippi Supreme Court reviewed Evans' proffered explanations for the strikes deferentially and without taking into account his extensive record of discrimination in this case, and affirmed. Flowers then sought review here, asking: "Whether a prosecutor's history of adjudicated purposeful race discrimination must be considered when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?" This Court responded by granting certiorari, vacating the Mississippi Supreme Court's judgment, and remanding "for further consideration in light of Foster v. Chatman, 136 S. Ct. 1737 (2016)." Flowers v. Mississippi, 136 S.Ct. 2157 (2016).

On remand, a divided Mississippi Supreme Court again affirmed. Over three dissents, the state court majority emphasized deference to the trial court, and insisted both that the "[t]he prior adjudications of the violation of Batson do not undermine Evans' race neutral reasons," and that "the historical evidence of past discrimination . . . does not alter our analysis . . ." Flowers v. Mississippi, 240 So.3d 1082, 1124 (Miss. 2018). The state court majority then repeated, nearly word-for-word, its previous, history-blind evaluation of Evans' strikes.

The court granted the petition for certiorari limitied to the following question: Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986) in this case. (Flowers v. State (Miss. 2017) 240 So.3d 1082, cert. granted 11/2/2018 (17-9572).)

Updated: 3/18/2019 May a State Abolish the Insanity Defense

Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense? (State v. Kahler (Kan. 2018) 410 P.3d 105, cert. granted 3/18/2019 (18-6135).)

Jury Trial
Updated: 3/18/2019 Sixth Amendment Guarantee Unanimous Verdict Applicable to States

Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict? (State v. Ramos (La.App.4th Cir. 2017) 231 So.3d 44, cert. granted 3/18/2019 (18-5924).)

Search & Seizure
Updated: 4/1/2019 Reasonable for Officer to Suspect the Registered Owner of Vehicle is Driving

A Kansas officer ran a registration check on a pickup truck and learned that the registered owner's license had been revoked. Suspecting that the owner was unlawfully driving, the officer stopped the truck, confirmed that the owner was driving, and issued the owner a citation for being a habitual violator of Kansas traffic laws. The Kansas Supreme Court, breaking with 12 state supreme courts and 4 federal circuits, held the stop violated the Fourth Amendment.

The question presented is whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary. (State v. Glover (Kan. 2018) 422 P.3d 64, cert. granted 4/1/2019 (18-556).)

Search & Seizure
Updated: 1/11/2019 Implied-Consent Law Authorizing Blood Draw From Unconscious Motorist

In both Missouri v. McNeely and Birchfield v. North Dakota, this Court referred approvingly to "implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply" with tests for alcohol or drugs when they have been arrested on suspicion of driving while intoxicated. 569 U.S. at 141, 161 (2013); 136 S. Ct. 2160, 2185 (2016). But a majority of states, including Wisconsin, have implied-consent laws that do something else entirely: they authorize blood draws without a warrant, without exigency, and without the assent of the motorist, under a variety of circumstances-most commonly when the motorist is unconscious. State appellate courts have sharply divided on whether such laws comport with the Fourth Amendment.

The question presented is: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. (State v. Mitchell (Wis. 2018) 914 N.W.2d 151, cert. granted 1/11/2019 (18-6210).)

Updated: 3/18/2019 Proper Interpretation of Miller v. Alabama and Montgomery v. Louisiana (Juvenile LWOP)

In Miller v. Alabama, 567 U.S. 460 (2012), this Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Id. at 465. Four years later, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held that "Miller announced a substantive rule of constitutional law" that, under Teague v. Lane, 489 U.S. 288 (1989), must be given "retroactive effect" in cases where direct review was complete when Miller was decided. Montgomery, 136 S.Ct. at 736.

The question presented is:

Did the Fourth Circuit err in concluding--in direct conflict with Virginia's highest court and other courts--that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question? (Malvo v. Mathena (4th Cir. 2018) 893 F.3d 265, cert. granted 3/18/2019 (18-217).)