Bold Justice: Court begins December sitting

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The Supreme Court heard five hours of arguments the week of November 30 and will hear five hours of arguments this week via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 45 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 before SCOTUS during its December sitting.

November 30

  • Van Buren v. United States concerns the Computer Fraud and Abuse Act (CFAA).

    Nathan Van Buren was convicted in the U.S. District Court for the Northern District of Georgia of felony computer fraud in violation of the Computer Fraud and Abuse Act (CFAA). Van Buren, a police sergeant in Cumming, Georgia, had accessed the Georgia Crime Information Center database to obtain information for a local man named Andrew Albo in exchange for money. Van Buren moved for acquittal, arguing he had not exceeded authorized access according to Section 1030(a)(2) of the CFAA. The district court rejected the motion. On appeal, the U.S. Court of Appeals for the 11th Circuit affirmed Van Buren’s conviction.

    The issue: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”
  • Trump v. New York concerns congressional apportionment following the 2020 U.S. Census. The Trump administration is asking the U.S. Supreme Court to consider if the president could order the commerce secretary to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.

President Donald Trump (R) issued a memorandum to Commerce Secretary Wilbur Ross regarding congressional apportionment following the 2020 U.S. Census. The memorandum said it was the policy of the United States to exclude individuals living unlawfully in the U.S. from the census apportionment base. A coalition of state and local governments and non-governmental organizations (NGOs) sued the government in the U.S. District for the Southern District of New York, arguing the policy violated the U.S. Constitution and laws governing the census and apportionment.

The administration argued (1) the court did not have jurisdiction to review the claims and (2) the policy was legal. The district court ruled in favor of the coalition, holding the president exceeded his authority in issuing the memorandum. The administration appealed to the U.S. Supreme Court.

The issues:

(1) Whether the coalition of state and local governments and NGOs have the legal right, also known as standing, to challenge the memorandum;

(2) whether the president has the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base.

December 1

  • Nestlé USA v. Doe I, consolidated with Cargill v. Doe I, concerns the Alien Tort Statute (“ATS”). Under 28 U.S. Code § 1350, the Alien Tort Statute says “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” A tort is a wrongful act other than a breach of contract leading to civil legal liability. According to SCOTUSblog, “The Alien Tort Statute is an 18th-century law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international human rights laws.”

A group of Malian citizens (“claimants”) filed a lawsuit under the ATS against corporations including Nestlé USA and Cargill, Inc. The claimants alleged they were subjected to child slavery on cocoa farms in Côte d’Ivoire. The U.S. District Court for the Central District of California dismissed the case, holding that corporations could not be held liable under the ATS. On appeal, the 9th Circuit vacated the lower court’s ruling. 

The issues

1. Whether a domestic corporation, alleged to be aiding and abetting violations of international human rights law outside of the United States, can be sued under the Alien Tort Statute.
2. Whether the courts have the authority to impose liabilities on a domestic corporation under the ATS.

In 2004, Congress authorized the Internal Revenue Service (IRS) to identify and gather details about potential tax shelters. The IRS set up requirements regarding transactions that are required to be reported to the IRS. In 2016, the IRS published a notice identifying certain “micro-captive transactions” as “transactions of interest,” under the umbrella of reportable transactions.

In 2017, risk management consulting firm CIC Services challenged the updated requirements in district court as being beyond the scope of the IRS’ authority and sought to enjoin, or halt, the notice’s enforcement. The IRS moved to dismiss the complaint, citing a lack of subject matter jurisdiction. The court granted the defendant’s motion. On appeal, the 6th Circuit affirmed the district court’s dismissal. 

The issue: “Whether the Anti-Injunction Act’s bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.”

December 2

  • Edwards v. Vannoy concerns the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020).

    A non-unanimous jury found Thedrick Edwards guilty of five counts of armed robbery, one count of attempted armed robbery, two counts of aggravated kidnapping, and one count of aggravated rape. Edwards was sentenced to 30 years imprisonment on each armed robbery count and to life imprisonment on the aggravated kidnapping and aggravated rape counts. Edwards appealed his conviction because it was decided by a non-unanimous jury verdict, which was since deemed unconstitutional by the Supreme Court in Ramos v. Louisiana (2020), and he appealed his sentence. Edwards’ appeal was denied in state and federal court. He then filed a petition for habeas corpus with the U.S. District Court for the Middle District of Louisiana. The district court denied Edwards’ claim. Edwards appealed to the U.S. Court of Appeals for the 5th Circuit, which refused to issue a certificate of appealability. A certificate of appealability is required to appeal a complaint arising from a state court during a habeas corpus proceeding.

The issue: Whether the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020) applies retroactively to cases on federal collateral review. In Ramos v. Louisiana, the U.S. Supreme Court held that the 6th Amendment’s right to a unanimous jury verdict to support a conviction applies in both federal and state courts.

  • Department of Justice v. House Committee on the Judiciary was originally scheduled for one hour of oral argument on December 2. On November 20, the court granted the House Judiciary Committee’s motion to remove the case from its December argument calendar. The House Judiciary Committee had asked the court to reschedule arguments following the Nov. 3, 2020, presidential and congressional elections. The Justice Department said that it did not object to the motion.

The case concerns the Federal Rules of Criminal Procedure and whether a U.S. Senate-conducted impeachment trial counts as a judicial proceeding for the purposes of disclosing secret grand jury information. 

The following cases will be heard the week of December 7:

December 7

  • Republic of Hungary v. Simon concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). The expropriation exception (28 U.S.C. § 1605(a)(3)) allows lawsuits against a foreign state involving “property taken in violation of international law.” International comity means that U.S. courts defer to another nation’s laws when legal action is brought under those laws.

    The case arises out of conflicting rulings in the 7th Circuit and the D.C. Circuit. Jewish survivors of the Hungarian Holocaust sued the Hungarian government and Magyar Államvasutak Zrt., Hungary’s state-owned railway company. The survivors sought damages for property the Hungarian government confiscated during World War II. The 7th Circuit ruled that under the doctrine of international comity, the survivors should first file suit in Hungarian courts. The D.C. Circuit held the opposite view.

    The issue: Was it proper for the district court to abstain from exercising jurisdiction under the FSIA for reasons of international comity because the respondents did not try to obtain legal remedies in Hungary before filing the lawsuits in the United States?
  • Federal Republic of Germany v. Philipp concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA).

    Jewish art dealers sold a collection of medieval art to Germany in the 1930s. The art dealers’ heirs claimed the sale was invalid and filed a lawsuit in the District of Columbia, invoking the expropriation exception of the FSIA. Germany and the SPK argued (1) that the expropriation exception did not apply and (2) that international comity did not allow the claimants to sue in D.C. The D.C. Circuit held the art sale violated international law within the meaning of the expropriation exception. It also held courts could not abstain from presiding over such claims based on international comity.

The issues:

(1) Does the FSIA’s expropriation exception require foreign states to defend themselves in U.S. courts when charged with illegally taking property from their own citizens on their own territory?

(2) If the expropriation exception permits these claims, can a U.S. court decline to exercise jurisdiction under the international comity doctrine? 

December 8

  • Facebook v. Duguid concerns the definition of an automated telephone dialing system in the Telephone Consumer Protection Act (TCPA).

    Facebook allows users to receive text message alerts when their accounts are accessed from unknown devices or browsers. Noah Duguid did not have a Facebook account and never consented to receive those alerts. He sued Facebook after receiving multiple text messages and attempting to opt out of receiving the alerts. He claimed Facebook violated the TCPA’s ban on calling or sending text messages to cell phones using an automated telephone dialing system (ATDS). The U.S. District Court for the Northern District of California dismissed the lawsuit. On appeal, the 9th Circuit reversed the district court’s ruling.

    The issue: “Whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’”
  • Henry Schein Inc. v. Archer and White Sales Inc. concerns arbitration agreements.

    Dental equipment distributor Archer & White Sales, Inc. entered into a distribution agreement with dental equipment manufacturer Pelton and Crane. The contract provided for arbitration of any dispute arising under or related to the agreement, except for actions seeking injunctive relief, among other potential actions. Henry Schein, Inc., a distributor and dental equipment manufacturer, was Pelton and Crane’s successor-in-interest, meaning that it would succeed Pelton and Crane as the interested party related to the property covered in the agreement. Archer sued Schein, alleging that the company violated the Sherman Antitrust Act and the Texas Free Enterprise and Antitrust Act. Schein moved to compel arbitration proceedings and to halt Archer’s suit and a magistrate judge granted the request. The Eastern District of Texas reconsidered the case and reversed the order, resuming proceedings in court. On appeal, the 5th Circuit affirmed the district court’s ruling. On appeal to the Supreme Court, SCOTUS vacated the 5th Circuit’s judgment and remanded the case back to the 5th Circuit for reconsideration. The 5th Circuit affirmed the district court’s ruling once again. Schein appealed to the Supreme Court for a second time.

The issue: “Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.”

December 9

  • Collins v. Mnuchin, consolidated with Mnuchin v. Collins, concerns the extent of the president’s appointment and removal powers and control of independent federal agencies.

    The Federal Housing Finance Agency (FHFA) worked with the U.S. Department of the Treasury to change how private shareholders of Fannie Mae and Freddie Mac are compensated when the companies make a profit. The shareholders sued, arguing that the change was beyond the powers of the FHFA and the Treasury and that the structure of the FHFA was unconstitutional.

    The issues:

(1) Whether FHFA’s structure violates the separation of powers.

(2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • December 7: 
    • SCOTUS will release orders. 
    • SCOTUS will hear arguments in two cases.
  • December 8: SCOTUS will hear arguments in two cases.
  • December 9: SCOTUS will hear arguments in one case.
  • December 11: SCOTUS will conference. A conference is a private meeting of the justices.
  • December 14: SCOTUS will release orders.

SCOTUS trivia

Which of the following did not serve as a Chief Justice of the United States Supreme Court?

1. John Jay

2. Thurgood Marshall

3. William Rehnquist

4. Salmon Portland Chase

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. This month’s edition includes nominations, confirmations, and vacancies from November 2 to December 1.


  • Vacancies: There has been one new judicial vacancy since the November 2020 report. As of December 1, 53 out of 870 (6.1%) 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, 60 of 890 active federal judicial positions are vacant.
  • Nominations: There has been one new nomination since the November 2020 report.
  • Confirmations: There have been seven new confirmations since the November 2020 report.

Vacancy count for December 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

One judge has left active status, creating an Article III life-term judicial vacancy, 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.

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 December 1, 2020.

U.S. District Court vacancies

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

New nominations

President Trump has announced one new nomination since the October 2020 report.

The president has announced 275 Article III judicial nominations since taking office on 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 November 2 and December 1, 2020, the Senate confirmed seven of the president’s nominees to Article III courts.

Between January 2017 and December 1, 2020, the Senate confirmed 227 of President Trump’s judicial nominees—168 district court judges, 53 appeals court judges, three 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.

Justice on center stage

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 Elena Kagan

Kagan has been an associate justice since August 7, 2010. President Barack Obama (D) nominated Kagan on May 10, 2010, to succeed John Paul Stevens. The U.S. Senate voted to confirm Kagan 63-37 on August 5, 2010.

Image of Elena Kagan

Before joining the U.S. Supreme Court, Kagan was the solicitor general of the United States (2009-2010). Before that, she was a dean with Harvard Law School and a Huston Professor of Law with Harvard University. Click here to learn more about Kagan’s professional career.

Kagan was born and raised in New York, New York. She earned her A.B. from Princeton University in 1981 and a master’s in philosophy from Worcester College at the University of Oxford in 1983. Kagan received her J.D. from Harvard Law School in 1986.

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