Bold Justice: 15 federal judges confirmed in May

Welcome to the June 3 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Looking for some good beach reading during summer vacation? We’ve got you covered! Follow us on Twitter or subscribe to the Daily Brew for the most up-to-date political information.

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The Supreme Court has finished hearing oral arguments for cases in its October 2018 term. Click here to read more about SCOTUS’ current term.


SCOTUS has ruled on six cases since our May 20 issue. The court has issued rulings in 39 cases so far this term.

Click the links below to read more about the specific cases SCOTUS ruled on since May 20:

 May 20



  • Merck Sharp & Dohme Corp. v. Albrecht was argued before the court on Jan. 7, 2019.

    Hundreds of lawsuits were consolidated against the drug manufacturer Merck Sharp & Dohme, claiming the osteoporosis drug Fosamax caused thigh bone fractures and the FDA-approved label failed to warn about this side effect. A district court dismissed the case, ruling federal law preempted the claims. The court cited Wyeth v. Levine as precedent, which stated that “state-law failure-to-warn claims are preempted when there is ‘clear evidence’ that the FDA would not have approved the warning that a plaintiff claims was necessary.”

    The U.S. Court of Appeals for the 3rd Circuit reversed the lower court’s ruling, writing plaintiffs had “produced sufficient evidence for a reasonable jury to conclude that the FDA would have approved a properly-worded warning about the risk of thigh fractures—or at the very least, to conclude that the odds of FDA rejection were less than highly probable.”

    The outcome: In a unanimous opinion, the court vacated and remanded the 3rd Circuit’s ruling. The court held that judges, rather than juries, should decide if FDA action preempts state cases alleging failure to warn about drug side effects. According to SCOTUSblog, the “court unanimously agreed on who should decide (a judge) and what Wyeth’s ‘clear evidence’ standard means (an ‘irreconcilable conflict,’ rather than a standard of proof).”

    Justice Breyer delivered the court’s opinion.
  • Herrera v. Wyoming was argued before the court on Jan. 8, 2019.

    Clayvin Herrera, a member of the Crow Tribe of Indians, was hunting elk on the Crow Reservation. He and other tribal members shot three elk after following the animals out of the Crow Reservation and into the Big Horn National Forest. He was charged with two misdemeanors for hunting without a license and during closed season. Herrera sought to have the charges dismissed, arguing the 1868 Crow Treaty gave him the right to hunt where and when he did and that the treaty preempted state law.

    The outcome: In a 5-4 decision, the court vacated and remanded the ruling of the Wyoming 4th Judicial District Court, holding the “Crow Tribe’s hunting rights under the 1868 Treaty did not expire upon Wyoming’s statehood.”

    Justice Sonia Sotomayor delivered the opinion of the court, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Neil Gorsuch. Justice Samuel Alito filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh.

    Sotomayor wrote, “The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not ‘unoccupied.’ We disagree. The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically ‘occupied’ when set aside as a national reserve.”
  • Mission Product Holdings v. Tempnology LLC was argued before the court on Feb. 20, 2019. Tempnology, LLC, made and owned the intellectual property to certain products designed to keep a person cool while exercising. Tempnology and Mission Product Holdings (Mission) entered an agreement stating Mission had distribution rights to some of Tempnology’s products, a nonexclusive license to Tempnology’s intellectual property, and a license to use Tempnology’s trademark and logo.

    Tempnology filed for Chapter 11 bankruptcy and tried to reject its agreement with Mission. The bankruptcy court found Mission could only claim damages for breach of contract and Tempnology was not required to continue to perform the license agreement. The 1st Circuit Court of Appeals affirmed the bankruptcy court’s decision.

    The outcome: In an 8-1 opinion, the court reversed and remanded the U.S. Court of Appeals for the 1st Circuit’s ruling. The court held that a debtor-licenser’s rejection of a contract neither party has finished performing does not prevent the licensee from using the trademark. 

    Justice Kagan delivered the majority opinion. Justice Sotomayor filed a concurring opinion. Justice Gorsuch dissented.

May 28

  • Nieves v. Bartlett was argued before the court on Nov. 26, 2018.Alaska state troopers Luis Nieves and Bryce Weight arrested Russell Bartlett who subsequently sued Nieves and Weight for false arrest, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment—a decision on the basis of statements and evidence without a trial—to Nieves and Weight on all counts. The U.S. Court of Appeals for the 9th Circuit agreed with the district court that Nieves and Weight had probable cause to arrest Bartlett for harassment, disorderly conduct, resisting arrest, or assault. The 9th Circuit affirmed the district court’s ruling on the false arrest, excessive force, and malicious prosecution charges, but reversed the ruling on the retaliatory arrest charge.

    The outcome: In a 6-3 decision, the court reversed and remanded the 9th Circuit’s ruling, holding because “there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law.” 

    Chief Justice Roberts delivered the opinion of the court. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justices Ginsburg and Gorsuch filed separate opinions concurring in part and dissenting in part. Justice Sotomayor dissented.


  • Home Depot U.S.A. Inc. v. Jackson was argued before the court on Jan. 15, 2019.

    In 2016, Citibank filed a debt collection action against George Jackson in a Mecklenburg County, North Carolina district court. Citibank alleged Jackson failed to pay for a water treatment system he purchased using a Citibank-issued credit card. Jackson filed a counterclaim and third-party class action claims against Home Depot and Carolina Water Systems, Inc. (CWS) for engaging in unfair and deceptive trade practices. Citibank then dismissed its claims against Jackson. Home Depot filed a notice of removal under the Class Action Fairness Act of 2005 (CAFA) and moved to realign the parties with Jackson as plaintiff and Home Depot, CWS, and Citibank as defendants. Jackson then amended his third-party complaint to remove Citibank. The Mecklenburg County district court denied Home Depot’s motion to realign and granted Jackson’s motion to remand.

    The outcome: In a 5-4 opinion, the court affirmed the judgment of the U.S. Court of Appeals for the 4th Circuit, holding “Home Depot could not remove the class-action claim filed against it” because provisions in 28 U.S. Code §1441(a) and in the CAFA do not permit “removal by a third-party counterclaim defendant.”

    Justice Thomas delivered the opinion of the court. He was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh.


  • Smith v. Berryhill was argued before the court on March 18, 2019.

    The Social Security Administration’s Appeals Council denied a renewal of Ricky Lee Smith’s application for supplemental security income (SSI) resulting from disability, finding that Smith did not file his claim on time. Smith alleged that he suffered due process violations, but the U.S. district court and the 6th Circuit Court disagreed.

    The outcome: In a unanimous opinion, the court reversed and remanded the 6th Circuit’s ruling, holding that the SSA Appeals Council’s dismissal of a claim for untimeliness permits judicial review in a U.S. federal court under 42 United States Code §405(g).

    Justice Sotomayor delivered the opinion of the court.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in June:

  • June 3: SCOTUS will release orders.
    • When SCOTUS releases orders, they grant or deny review on the merits of a case. They can also issue other orders, such as granting or denying a request to participate in oral argument, according to SCOTUSblog.
  • June 6: SCOTUS will conference. A conference is a private meeting of the justices where justices decide which cases to accept or reject and discuss and vote on cases heard since the previous conference.
  • June 10: SCOTUS will release orders.
  • June 13: SCOTUS will conference.

SCOTUS trivia

When a court makes a decision on the basis of statements and evidence presented without a trial, what is the court granting?

  1. A writ of certiorari
  2. A temporary restraining order
  3. Summary judgment
  4. A subpoena

Choose an answer to find out!

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. Ballotpedia publishes the Federal Vacancy Count on the last Wednesday of the month. The July 1 issue of Bold Justice will include the next Federal Vacancy Count.

This month’s edition includes nominations, confirmations, and vacancies from April 25 to May 29, 2019.


  • Vacancies: There have been four new judicial vacancies since the April 2019 report. As of May 29, 126 of 870 active Article III judicial positions on courts covered in this report were vacant—a vacancy percentage of 14.5 percent.

    Including the United States Court of Federal Claims and the United States territorial courts, 137 of 890 active federal judicial positions are vacant.

  • Nominations: There have been eight new nominations since the April 2019 report.

  • Confirmations: There have been 15 new confirmations since the April 2019 report.

Vacancy count for May 29, 2019

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on the federal courts, click here.

New vacancies

The following judges left active status, creating Article III vacancies. As Article III judicial positions, they must be filled by a nomination from the president. Nominations are subject to Senate confirmation.

For more information on judicial vacancies during President Trump’s first term, click here.

New nominations

President Trump announced eight new nominations since the April 2019 report.

  • Peter Phipps, to the U.S. Court of Appeals for the 3rd Circuit.
  • Douglas Cole, to the U.S. District Court for the Southern District of Ohio.
  • Charles Eskridge, to the U.S. District Court for the Southern District of Texas.
  • Kea Riggs, to the U.S. District Court for the District of New Mexico.
  • William Shaw Stickman, to the U.S. District Court for the Western District of Pennsylvania.
  • Jennifer Philpott Wilson, to the U.S. District Court for the Middle District of Pennsylvania.
  • David Barlow, to the U.S. District Court for the District of Utah.
  • Kevin Sweazea, to the U.S. District Court for the District of New Mexico.

The president has announced 188 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.

New confirmations

Between April 25 and May 29, 2019, the Senate confirmed 15 of the president’s nominees to Article III courts. Since January 2017, the Senate has confirmed 112 of President Trump’s judicial nominees—69 district court judges, 41 appeals court judges, and two Supreme Court justices.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals President Trump has nominated.