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Arguments

The Supreme Court will hear three 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 9

• Niz-Chavez v. Barr concerns (1) the government’s ability to serve a notice to appear to a non-citizen and (2) the immigration stop-time rule, where a non-citizen’s accrual of continuous residence ends when that person is served with a notice to appear. Agusto Niz-Chavez, a native and citizen of Guatemala, came to the United States without legal permission in 2005. In 2013, he was served with a notice to appear for deportation proceedings. The notice to appear did not include the time and place of a hearing. A second notice later indicated the hearing would take place on June 25, 2013. Niz-Chavez applied for withholding of removal under the Immigration and Nationality Act and for relief under the United Nations Convention Against Torture. An immigration judge denied his motion. The U.S. Board of Immigration Appeals affirmed the immigration judge’s decision, and the U.S. Court of Appeals for the 6th Circuit denied a petition for review.

  Congress enacted the stop-time rule as part of the Illegal Immigration Reform and Immigrant Responsibility Act. The rule says a non-citizen’s accrual of continuous residence in the United States ends when the government serves the non-citizen with a notice to appear under 8 U.S.C. § 1229(a). The IIRIRA required the notice to appear to include the time and place of a hearing.

  The issue: Whether the government must provide the time and place of deportation hearings in a single notice to appear document to trigger the stop-time rule under 8 U.S.C. § 1229(a), or whether the government can provide the information in multiple documents to trigger the rule.

• Brownback v. King concerns the judgment bar of the Federal Tort Claims Act (FTCA). The FTCA judgment bar provision says: “The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” In 2014, FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen stopped James King, who violently resisted arrest. King was tried and acquitted of charges of assault with intent to do great bodily harm, aggravated assault of a police officer, and resisting arrest. He then sued the United States under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The U.S. District Court for the Western District of Michigan ruled that Brownback and Allen had not violated King’s constitutional rights under Bivens. The district court also decided against King’s FTCA claims.

  King appealed. On appeal, Brownback and Allen argued the FTCA judgment bar prevented King’s Bivens claims. The 6th U.S. Circuit Court of Appeals rejected their argument and reversed the district court’s ruling.

  The issue: Whether a final judgment against a claimant in a lawsuit brought under Section 1346(b)(1) of the FTCA prevents the claimant from bringing a claim under Bivens for the same injuries against the same government employees.

November 10

• California v. Texas concerns the Patient Protection and Affordable Care Act (ACA), also known as Obamacare. President Barack Obama (D) signed the ACA into law in 2010. Section 5000A of the ACA, known as the individual mandate, established requirements for individuals to have health coverage and instituted fines for those without coverage.

  In 2018, 20 states filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the individual mandate and claiming the ACA was unconstitutional. A district court judge ruled the law was invalid. On appeal, the U.S. Court of Appeals for the 5th Circuit ruled Section 5000A was unconstitutional and remanded the case. A group of states petitioned the U.S. Supreme Court for review, arguing (1) the respondents did not have the legal right to challenge the law and (2) the law was constitutional. 

  The issues: (1) Whether plaintiffs have the legal right to challenge the individual mandate.

  (2) Whether reducing the amount specified for fines in Section 5000A(c) to zero made the individual mandate provision unconstitutional.

  (3) If so, whether the individual mandate provision is severable from the rest of the ACA, i.e., whether the remainder of the ACA can remain in place if the individual mandate provision is unconstitutional.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• November 9: 
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in two cases.
• November 10: SCOTUS will hear arguments in one case.
• November 13: SCOTUS will conference. A conference is a private meeting of the justices.
• November 16: SCOTUS will release orders.
• November 20: SCOTUS will conference.
• November 23: SCOTUS will release orders.
• November 30: SCOTUS will hear arguments in two cases.

Justice Clarence Thomas swore Justice Amy Coney Barrett into office on October 26, 2020. How many oaths of office are SCOTUS justices required to take?

1. Nine
2. Five
3. Two
4. One

Choose an answer to find out!

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from October 2 to November 1.

Highlights

• Vacancies: There have been two new judicial vacancies since the October 2020 report. As of November 1, 59 out of 870 (6.8%) active Article III judicial positions on the courts covered in this report were vacant. Including the United States Court of Federal Claims and the United States territorial courts, 66 of 890 active federal judicial positions are vacant.
   
• Nominations: There have been two new nominations since the October 2020 report.
   
• Confirmations: There have been two new confirmations since the October 2020 report.

Vacancy count for November 1, 2020

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.

*Though the United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Two judges have left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. A presidential nomination is required to fill an Article III vacancy. Nominations are subject to the advice and consent of the U.S. Senate.

• Judge Amy Coney Barrett left the U.S. Court of Appeals for the 7th Circuit after she was elevated to the Supreme Court of the United States.
• Judge Juan Torruella died on October 26, 2020, leaving an open seat on the U.S. Court of Appeals for the 1st Circuit.

The chart below shows the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017 to November 1, 2020.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of November 1.

New nominations

President Trump has announced two new nominations since the October 2020 report.

• Thomas Kirsch, to the United States Court of Appeals for the 7th Circuit.
• Joseph Barloon, to the United States 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.

New confirmations

Between October 2 and November 1, 2020, the Senate confirmed two of the president’s nominees to Article III courts.

• Amy Coney Barrett, confirmed to the Supreme Court of the United States.
• Michael Newman, confirmed to the United States District Court for the Southern District of Ohio.

Between January 2017 and November 1, 2020, the Senate 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.

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 the president 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 Sonia Sotomayor.

Sotomayor has been an associate justice since August 6, 2009. President Barack Obama (D) nominated Sotomayor on June 1, 2009, to succeed David Souter. The U.S. Senate voted to confirm Sotomayor 68-31 on August 6, 2009.

Before joining the U.S. Supreme Court, Sotomayor was a judge on the U.S. Court of Appeals for the 2nd Circuit (1998-2009) and the U.S. District Court for the Southern District of New York (1992-1998). Before that, she was an attorney in private practice and an assistant district attorney in New York County. Click here to learn more about Sotomayor’s professional career.

Sotomayor was born in the Bronx, New York, on June 25, 1954. Her parents were born in Puerto Rico. Sotomayor graduated as valedictorian from Cardinal Spellman High School, a private Catholic school in New York City, in 1972. She earned a B.A., summa cum laude, in history from Princeton University in 1976 and a J.D. from Yale Law School in 1979. At Yale, she co-chaired the Latin American and Native American Students Association and was published in the Yale Law Journal (where she also served as an editor).

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

• Peter v. NantKwest
• CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd.
• Maine Community Health Options v. United States
• Lucky Brand Dungarees v. Marcel Fashion Group
• Liu v. Securities and Exchange Commission

We’ll be back December 7 with a new edition of Bold Justice.

Contributions

Sara Reynolds compiled and edited this newsletter.