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Arguments

The Supreme Court will hear five hours of arguments this week via teleconference with live audio. The court made the decision to hold proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 41 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

In its October 2019 term, SCOTUS heard arguments in 61 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:

November 2

• In U.S. Fish and Wildlife Service v. Sierra Club, the Sierra Club challenged an Environmental Protection Agency rule and a biological opinion from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services). A biological opinion is a document stating the Services’ opinion on whether a federal agency action is likely to harm listed species or critical habitat. During that litigation, the Sierra Club submitted a Freedom of Information Act (FOIA) request for draft documents from a consultation between the three agencies that took place between 2011 and 2014. The Services released some documents but withheld others under FOIA Exemption 5. FOIA requires a federal agency to disclose records upon request. The law grants nine exemptions. Exemption 5 allows an agency to withhold “inter-agency or intra-agency memoranda or letters that are protected by legal privileges.”

  The Sierra Club sued Services in the U.S. District Court for the Northern District of California, which ruled Services had to disclose some documents but could withhold others. On appeal, the U.S. 9th Circuit Court of Appeals affirmed in part and reversed in part the district court’s decision. The government petitioned the U.S. Supreme Court for review.

  The issue: Whether FOIA Exemption 5 protects draft documents from compelled disclosure if the documents were (1) created during a formal interagency consultation process under Section 7 of the Endangered Species Act and (2) later modified in the consultation process.

• In Salinas v. U.S. Railroad Retirement Board, Manfredo Salinas filed an application for disability annuity with the U.S. Railroad Retirement Board’s Disability Benefits Division in 2006. The application was denied. Salinas appealed to the Board to reconsider. The Board denied the request. In 2013, Salinas filed a new application for disability annuity. The Board granted the annuity. Salinas appealed the annuity’s start date and amount, and requested that his prior applications be reviewed. The Board denied the request. On appeal, the 5th Circuit dismissed Salinas’ petition, holding the court lacked jurisdiction to review the Board’s decision not to reopen Salinas’ earlier case. The issue: Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a final decision subject to judicial review.

November 3

• Jones v. Mississippi concerns sentencing of juveniles—individuals under 18 years old—to life imprisonment without parole. When he was 15 years old, Brett Jones killed his grandfather. Jones was convicted and sentenced to life imprisonment without parole. Following the U.S. Supreme Court’s decision in Miller v. Alabama (2012), the Mississippi Supreme Court ordered the Lee County Circuit Court to hold a sentencing rehearing. The circuit court resentenced Jones to life in prison without parole. Jones appealed to the Mississippi Court of Appeals, which rejected his argument to reverse the sentence. The state supreme court then held oral arguments for the case before dismissing it. Four judges dissented, arguing Jones’ case should be remanded with instructions to sentence him to life in prison with the possibility of parole. Jones petitioned the U.S. Supreme Court for review. The issue: Whether the 8th Amendment requires a sentencing authority to find that a juvenile is “permanently incorrigible” before sentencing the juvenile to life without parole.

  A juvenile is considered incorrigible when he or she refuses to accept the authority and discipline of adults in a repeated, dangerous, and disruptive way.

• Borden v. United States concerns the “use of force” clause in the Armed Career Criminal Act (ACCA). Charles Borden, Jr. pleaded guilty to possessing a firearm as a felon. The U.S. District Court for the Eastern District of Tennessee, relying on the 6th Circuit Court’s decision in United States v. Verwiebe (2017), sentenced Borden to nine years and seven months of imprisonment under the ACCA. In Verwiebe, the 6th Circuit ruled that “reckless aggravated assault is a crime of violence” under the ACCA’s use-of-force clause. Borden objected to his sentence, arguing the district court’s application of Verwiebe to his case violated due process protections. On appeal, the 6th Circuit affirmed the district court’s ruling. Borden petitioned the U.S. Supreme Court for review.

  The issue: Does the “use of force” clause in the ACCA apply to crimes committed with a reckless intent?

  The ACCA’s “use of force” clause states:

  “The term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year … that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another.”

November 4

• In Fulton v. City of Philadelphia, Pennsylvania, Philadelphia’s Department of Human Services began an investigation into two of its foster care provider agents for potential violations of the city’s anti-discrimination laws. The investigation was based on an allegation that the agencies refused to work with same-sex couples seeking to become foster parents. One of the agencies was a religious nonprofit organization, Catholic Social Services (CSS). CSS confirmed that it would not certify same-sex couples as foster parents. The city stopped referring foster children to the agency. CSS sued the city in U.S. district court, citing violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act.

  The district court denied the request. CSS appealed to the 3rd Circuit, seeking emergency injunctive relief pending appeal. The circuit court denied the request. Then, CSS filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. The Court denied the request. On appeal, the 3rd Circuit affirmed the district court’s ruling.

  The issue: “Whether a Catholic social services agency that receives taxpayer funding can legally discriminate against same-sex couples to be foster parents.”

Upcoming SCOTUS dates

 Here are the upcoming dates of interest in October:

• November 2: 
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in two cases.
• November 3: SCOTUS will hear arguments in two cases.
• November 4: SCOTUS will hear arguments in one case.
• November 6: SCOTUS will conference. A conference is a private meeting of the justices.

The Roberts Court started in September 2005 and is ongoing. Excluding Chief Justice Roberts, how many justices have served on the U.S. Supreme Court during the Roberts Court?

1. 22
2. 14
3. 11
4. 9

Choose an answer to find out!

Confirmations

The Senate has confirmed two new nominees since our October 12 issue.

• Amy Coney Barrett was confirmed to the U.S. Supreme Court. After she received commission, the court had:
  • No vacancies.
  • Six Republican-appointed judges and three Democrat-appointed judges.
• Michael Newman was confirmed to the U.S. District Court for the Southern District of Ohio. After he receives commission, the court will have:
  • Five Republican-appointed judges and three Democrat-appointed judges.

Since January 2017, the Senate has confirmed 220 of President Trump’s judicial nominees—162 district court judges, 53 appeals court judges, two Court of International Trade judges, and three Supreme Court justices.

Amy Coney Barrett confirmation

On October 26, the U.S. Senate voted 52-48 to confirm Amy Coney Barrett to a seat on the U.S. Supreme Court. The vote was mostly along party lines, with Sen. Susan Collins of Maine as the only Republican to vote with Democrats against Barrett’s confirmation.

President Trump nominated Barrett on September 29 to succeed Associate Justice Ruth Bader Ginsburg, who died on September 18 at the age of 87.

Barrett earned her bachelor’s degree, magna cum laude, in English literature from Rhodes College in 1994 and her J.D., summa cum laude, from Notre Dame Law School in 1997. She was awarded the law school’s Hoynes Prize, which is the law school’s highest honor. Barrett was executive editor of the Notre Dame Law Review.

Barrett was a judge on the U.S. Court of Appeals for the 7th Circuit from 2017 to 2020. From 2002 to 2017, she was a professor of law at Notre Dame Law School. She previously worked in private practice and as a law clerk to U.S. Supreme Court Justice Antonin Scalia (1998-1999) and to Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit (1997-1998).

Barrett has explained her judicial philosophy as originalist—interpreting the U.S. Constitution according to what the words meant to the individuals who wrote it—and textualist—interpreting a law based on the words on the page, not what Congress may have intended to do when the law was passed.

Nominations

President Trump has announced two new Article III nominees since our October 12 edition.

• Thomas Kirsch II of Indiana to the U.S. Court of Appeals for the 7th Circuit.
• Joseph Barloon of Maryland to the U.S. Court of International Trade.

The president has announced 273 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.

 

Vacancies

The federal judiciary currently has 66 vacancies. As of publication, there were 41 pending nominations.

According to the Administrative Office of U.S. Courts, an additional two 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.

Committee action

The Senate Judiciary Committee has reported five new nominees out of committee since our October 12 edition.

• Amy Coney Barrett, nominee for the U.S. Supreme Court
• Benjamin Beaton, nominee for the U.S. District Court for the Western District of Kentucky
• Kristi Haskins Johnson, nominee for the U.S. District Court for the Southern District of Mississippi
• Taylor McNeel, nominee for the U.S. District Court for the Southern District of Mississippi
• Kathryn Kimball Mizelle, nominee for the U.S. District Court for the Middle District of Florida

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.

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Samuel Alito.

Alito has been an associate justice since January 31, 2006. President George W. Bush (R) nominated Alito on November 10, 2005, to succeed Sandra Day O’Connor. The U.S. Senate voted to confirm Alito 58-42 on January 31, 2006.

Before joining the U.S. Supreme Court, Alito was a judge on the U.S. Court of Appeals for the 3rd Circuit. Before that, he was a U.S. attorney for the District of New Jersey, a deputy assistant attorney general in the U.S. Department of Justice, and an assistant to the U.S. solicitor general. Click here to learn more about Alito’s professional career.

Alito was born in Trenton, New Jersey, in 1950. He earned an A.B. from Princeton University in 1972 and a J.D. from Yale Law School in 1975, where he was an editor of the Yale Law Journal. After law school, Alito was a law clerk to Judge Leonard Garth on the U.S. Court of Appeals for the 3rd Circuit.

Alito was drafted to serve in the Vietnam War on December 1, 1969. He deferred his service while enrolled in college. At Princeton, he joined the Army Reserve Officers’ Training Corps (ROTC) and was commissioned as a second lieutenant after his graduation. He deferred his service a second time as he entered Yale Law School. After graduation from law school, he served three months of active service from September to December of 1975. Alito served in the Army Reserve from 1972 until 1980, when he was honorably discharged with the rank of captain.

In the 2019-2020 term, Alito wrote the following opinions:

• Hernandez v. Mesa
• Intel Corp. Investment Policy Committee v. Sulyma
• Kansas v. Garcia
• Babb v. Wilkie
• Department of Homeland Security v. Thuraissigiam
• Our Lady of Guadalupe School v. Morrissey-Berru (Consolidated with St. James School v. Biel)

We’ll be back November 9 with a new edition of Bold Justice. 

Contributions

Sara Reynolds compiled and edited this newsletter, with contributions from Kate Carsella and Jace Lington.

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