|Welcome to the February 24 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. We’re getting ready for Mardi Gras on February 25. Stay up-to-date on the latest news while you’re enjoying the carnival! Follow us on Twitter or subscribe to the Daily Brew.
The Supreme Court will hear four hours of arguments this week. Click here to read more about SCOTUS’ current term.
In its October 2018 term, SCOTUS heard arguments in 69 cases. Click here to read more about SCOTUS’ previous term.
Click the links below to read more about the specific cases SCOTUS will hear this week:
- February 24
- In U.S. Forest Service v. Cowpasture River Preservation Association, the U.S. Forest Service issued a permit in 2018 allowing Atlantic Coast Pipeline LLC to construct a natural gas pipeline that would cross under the Appalachian Trail. Cowpasture River Preservation Association challenged the record of decision and the special use permit in the 4th Circuit Court of Appeals. The 4th Circuit vacated the permit, ruling the Forest Service didn’t have the legal authority to grant right-of-way—strips of land in which natural gas pipelines are installed—on the Appalachian Trail land.
The Forest Service and Atlantic Coast Pipeline petitioned to the Supreme Court, arguing the 4th Circuit was wrong to vacate the permit.
The case is consolidated with Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association.
The issue: Whether the Forest Service has authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.
- In Opati v. Republic of Sudan, from 1991 to 1996, the terrorist group al Qaeda maintained an operations base in Sudan, from which it launched terrorist cells in Kenya and Tanzania. Al Qaeda bombed U.S. embassies in Kenya and Tanzania in 1998, killing more than 200 people and injuring thousands. In 2001 and in following years, various plaintiffs, including the Opati plaintiffs, sued Sudan, arguing the bombings were “extrajudicial killings” under the Foreign Sovereign Immunities Act (FSIA). Sudan denied the allegations.
In 2014, the U.S. District Court for the District of Columbia issued final judgments awarding more than $10.2 billion in punitive damages against Sudan. Sudan appealed the cases. On appeal, the D.C. Circuit Court vacated the damages awarded.
The Opati plaintiffs appealed to the U.S. Supreme Court, asking it to clarify whether “the FSIA may be applied retroactively to impose punitive damages on a state sponsor of terrorism.”
The issue: Whether the FSIA applies retroactively. If so, does it allow foreign nations to be sued for punitive damages for terrorist activities committed before the FSIA’s passage.
- February 25
- In United States v. Sineneng-Smith, Evelyn Sineneng-Smith was convicted on two counts of encouraging or inducing illegal immigration for financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and 8 U.S.C. § 1324(a)(1)(B)(i). The U.S. District Court for the Northern District of California sentenced Sineneng-Smith to one and a half years in prison and three years of supervised release.
The U.S. Court of Appeals for the 9th Circuit reversed the convictions, vacated the sentence, and remanded the case for resentencing. The 9th Circuit panel ruled 8 U.S.C. § 1324(a)(1)(A)(iv) was “unconstitutionally overbroad in violation of the First Amendment.”
The government petitioned SCOTUS for review, arguing the 9th Circuit “invalidated an Act of Congress on its face.”
The issue: Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is unconstitutional.
- February 26
- In Lomax v. Ortiz-Marquez, Arthur James Lomax, a prisoner at the Limon Correctional Facility in Colorado, filed a complaint against five Centennial Correctional Facility employees and a member of the Central Classification Committee at Offender Services. The U.S. District Court for the District of Colorado rejected the complaint under the three-strikes provision.
The three-strikes provision (28 U.S.C. 1915(g)) states a prisoner may not bring a civil action if a court has previously dismissed, at least three times, an action “on the grounds that it is frivolous, malicious, or fails to state a claim,” except if the prisoner “is under imminent danger of serious physical injury.”
On appeal, the U.S. Court of Appeals for the 10th Circuit affirmed the district court’s decision and denied Lomax’s motion.
The issue: Whether a dismissal of a civil action without prejudice for failure to state a claim is a strike under the three-strikes provision.
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
- February 24:
- SCOTUS will release orders.
- SCOTUS will hear arguments in two cases.
- February 25: SCOTUS will hear arguments in one case.
- February 26: SCOTUS will hear arguments in one case.
- February 28: SCOTUS will conference.
Thurgood Marshall was the first African-American to serve on the U.S. Supreme Court. Which president nominated Marshall to the seat?
The Senate confirmed five new nominees since our February 10 issue.
- Andrew Brasher, confirmed to the U.S. Court of Appeals for the 11th Circuit. After he receives commission, the court will have:
- No vacancies.
- Seven Republican-appointed judges and five Democrat-appointed judges.
- Matthew Schelp, confirmed to the U.S. District Court for the Eastern District of Missouri. After he receives commission, the court will have:
- No vacancies.
- Four Republican-appointed judges and five Democrat-appointed judges.
- Joshua Kindred, confirmed to the U.S. District Court for the District of Alaska. After he received commission, the court had:
- No vacancies.
- Two Republican-appointed judges and one Democrat-appointed judge.
- John Kness, confirmed to the U.S. District Court for the Northern District of Illinois. After he received commission, the court had:
- Two vacancies.
- Seven Republican-appointed judges and 13 Democrat-appointed judges.
- Philip Halpern, confirmed to the U.S. District Court for the Southern District of New York. After he receives commission, the court will have:
- Three vacancies.
- Six Republican-appointed judges and 19 Democrat-appointed judges.
Since January 2017, the Senate has confirmed 192 of President Trump’s judicial nominees—137 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.
President Trump has announced two new Article III nominees since our February 10 edition.
The president has announced 245 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.
The federal judiciary currently has 79 vacancies. As of publication, there were 37 pending nominations.
According to the Administrative Office of U.S. Courts, an additional eight judges have announced their intention to leave active judicial status during Trump’s first term.
For more information on judicial vacancies during Trump’s first term, click here.
The Senate Judiciary Committee has not reported any new nominees out of committee since our February 10 edition.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.
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.
We’ll be back March 2 with a new edition of Bold Justice.