SCOTUS begins its new term in just over two weeks

The Daily Brew
Welcome to the Monday, September 23, Brew. Here’s what’s in store for you as you start your day:

  1. Supreme Court has scheduled oral arguments for the first three months of its 2019-20 term
  2. Oklahoma governor fills state Supreme Court vacancy
  3. Nominees chosen for two November state legislative special elections in Kentucky

Supreme Court has scheduled oral arguments for the first three months of its 2019-20 term

In just over two weeks—on October 7—the Supreme Court begins its new term. The Court has already agreed to hear 44 cases this term and has scheduled dates for oral argument for 34 of them throughout October, November, and December. 

Between 2007 and 2019, the Supreme Court issued opinions in 924 cases, which works out to an average of between 70 and 90 cases per year. In the 2019-2020 term, the Court agreed to consider 75 cases. It heard oral argument in 72 of them and decided three cases without argument.

Here are four cases that are among the nine the court will hear in October:

  • Bostock v. Clayton County, Georgia—whether federal laws that prohibit employment discrimination apply to discrimination based on sexual orientation.

  • R.G. & G.R. Harris Funeral Homes v. EEOC—whether federal laws prohibit discrimination against transgender people.

  • Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC—whether appointments to the Financial Oversight and Management Board for Puerto Rico—an organization created by Congress in 2016 to oversee the restructuring of Puerto Rico’s debt—are constitutional.

  • Mathena v. Malvo—whether a series of Supreme Court decisions that have tightened the conditions under which courts should sentence defendants to either death or life imprisonment without parole for crimes committed when they were under 18 should apply to Lee Boyd Malvo. Malvo was sentenced to four terms of life imprisonment for his involvement in a series of sniper shootings in the Washington, D.C., area in 2002 when he was 17.

The court’s term begins on the first Monday in October and lasts until the first Monday in October of the following year. It generally releases all of its decisions by the end of June. Our free newsletter about the federal judiciary—Bold Justice—covers all things Supreme Court and more. You won’t want to miss an issue, so click here to subscribe.

Oklahoma governor fills state Supreme Court vacancy 

SCOTUS is the final judicial arbiter in the land. Each of the 50 states also has its own supreme court, serving as the court of last resort. Two states—Oklahoma and Texas—actually have two different state supreme courts. 

Like SCOTUS, these courts hear and decide appeals of lower trial and appellate courts in cases at the state level. The number of justices on each court varies between five and nine in each state. There are 344 state Supreme Court justices nationwide. Of those judgeships, 165 are elected by voters, 12 are selected by state legislatures, and 167 are appointed.

Each state has different laws governing how state Supreme Court judges are normally selected and how vacancies on the court are filled. In Oklahoma, for example, when a vacancy occurs, the governor appoints one of three candidates from a list provided by the state’s judicial nominating commission. The appointed judge serves until the next general election when he or she must run in a retention election to remain on the court.

Oklahoma Gov. Kevin Stitt (R) appointed M. John Kane IV to the state Supreme Court October 17, replacing former Justice John Reif who retired in April. Kane is Stitt’s first nominee to the nine-member supreme court. Reif was appointed to the court by then-Gov. Brad Henry (D) in 2007.

Including Kane, three sitting Oklahoma Supreme Court justices were appointed by Republican governors. Five members were appointed by Democratic governors, and the remaining seat is vacant and will be the second seat that Stitt fills by appointment.

If there are no further retirements, three judges appointed by Republican governors and one appointed by a Democratic governor will face retention elections in 2020. According to the Oklahoma Policy Institute, no state Supreme Court or appellate court judge in Oklahoma has lost a retention election. 

In 2019, we’ve tracked 18 supreme court vacancies across 12 of the 29 states where replacement justices are appointed instead of elected. Of those 18 vacancies, 12 are in states where a Republican governor appoints the replacement. Five vacancies occurred in a state where a Democratic governor appoints the replacement, and one—in Virginia—occurred in a state where the legislature selects the replacement.

Nominees chosen for two November state legislative special elections in Kentucky

In continuing the theme of filling public official vacancies, let’s turn our gaze to state legislatures. States don’t just have different laws governing how state Supreme Court seats are filled, they also each have different methods of filling vacancies in their state legislatures. Twenty-five states fill vacancies through special elections, 22 through appointments and three states fill vacancies through a hybrid system that uses both appointments and special elections.

Even among states that hold special elections, each has different laws regarding when such an election must be scheduled and how candidates are placed on the ballot. Some states conduct primary elections to select each party’s nominee while in other states, special election candidates are chosen by local parties or through party conventions.

For example, Kentucky is holding a special election November 5 to fill the vacant District 18 seat in the state House of Representatives. The county executive committees in each party selected their nominees—Becky Miller (D) and Samara Heavrin (R)—this week. The winner of the special election will serve the remainder of former state Rep. Tim Moore’s (R) term. Moore—who had served in the legislature since 2007—cited his belief in term limits when announcing his resignation. Kentucky will also hold a special election for another state House seat on November 5; the nominees for that seat were selected by local party committees in August. The Kentucky House of Representatives currently has 59 Republicans and 39 Democrats, with two vacant seats. 

Seventy-six state legislative special elections have been scheduled or held in 24 states in 2019. Thirty-nine were Democratic-held seats and 37 were Republican-held. Between 2011 and 2018, an average of 77 special elections took place each year. Twenty state legislative special elections will take place on November 5 in 11 states.