Bold Justice: Federal Judicial Vacancy Count released for September 1

Welcome to the September 13 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

When the air is white with the down o’ the thistle, ⁠
And the sky is red with the harvest moon; …

Put another way, it’s September! SCOTUS doesn’t start hearing arguments until next month, but they have certainly been busy!  Let’s gavel in, shall we?

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We #SCOTUS and you can, too!

Noteworthy court announcements

Here’s a quick roundup of the court’s most recent noteworthy announcements since the August 9 edition of Bold Justice:

Court announces in-person arguments for October, November, December sittings

  • On September 8, SCOTUS announced it would hear oral arguments in person for the first time since March 4, 2020, during its October, November, and December sittings. However, the court will not be open to the public, in accordance with its current precautions in response to COVID-19. Audio of the court’s proceedings will be streamed live to the public, as was the case during the 2020-2021 term. The audio files and argument transcripts for cases will be posted on the court’s website following oral argument each day.

Court rejects emergency appeal to Texas law banning abortions after six weeks of pregnancy

  • On August 31, SCOTUS did not respond to an emergency appeal from a group of abortion providers seeking to block enforcement of a Texas law banning abortion procedures after six weeks of pregnancy. The law also authorized private citizens to file civil actions against individuals for violating the law or aiding in violation of the law. Governor Greg Abbott (R) signed the bill, S.B. 8, into law on May 19, 2021. 
  • The appellants alleged that the law violated the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), establishing the constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The emergency appeal was submitted through the United States Court of Appeals for the 5th Circuit to Justice Samuel Alito, who is assigned to the circuit and responsible for reviewing emergency appeals. As the circuit justice, Alito was authorized to respond to the request himself or refer the matter to the full court for consideration.
  • On September 1, the court issued a 5-4 ruling denying the request to block enforcement of the Texas law. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan would have granted the application and filed dissenting opinions.

Court issues ruling on federal eviction moratorium

  • On August 26 in a 6-3 per curiam ruling, SCOTUS granted an application from the Alabama Association of Realtors et al to vacate the nationwide moratorium on evictions of tenants living in counties with substantial or high levels of COVID–19 transmission and who make declarations of financial need. The Centers for Disease Control and Prevention (CDC) imposed the moratorium in response to the coronavirus pandemic. In the unsigned opinion, the court stated, “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it. The application to vacate stay presented to [the Chief Justice] and by him referred to the Court is granted.” Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor, and Kagan.

Court rejects application for stay of Trump administration “remain in Mexico” policy

  • On August 24, SCOTUS denied the Biden administration’s application for a stay, or postponement, of a U.S. District Court for the Northern District of Texas injunction requiring the reinstatement of a Trump administration program referred to as the “remain in Mexico” policy. The policy requires asylum seekers to remain in Mexico while awaiting a U.S. immigration court hearing. The order noted that Justices Breyer, Sotomayor, and Kagan would have granted the application

Court denies request to halt groundbreaking for Obama presidential library

  • On August 20, Justice Amy Coney Barrett denied a request from Protect Our Parks, Inc. to block the groundbreaking construction and excavation for building the Obama Presidential Center in Jackson Park in Chicago, Illinois. The group alleged construction may cause irreversible harm to local wildlife, land, and historical characteristics in the area and to the public’s enjoyment of the area. Barrett denied the request without referring it to the full court.

Court issues ruling on state eviction moratorium

  • On August 12 in a 6-3 per curiam ruling, SCOTUS granted a request from a group of landlords in New York to lift part of a state moratorium on residential evictions–Part A of the COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA)–established in 2020 at the start of the COVID-19 pandemic. The court ruled Part A, which allows tenants to self-certify financial hardship and does not allow landlords to contest that certification, violated the due process clause. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan.

Justice Barrett denies request related to university vaccine requirement

  • On August 12, Justice Barrett denied an application from a group of students at Indiana University requesting the court block the school’s COVID-19 vaccine requirement for students. Barrett denied the request without referring it to the full court.

Grants

SCOTUS has accepted three new cases to its merits docket since our August 9 issue. To date, the court has agreed to hear 34 cases for the 2021-2022 term. SCOTUS dismissed two cases after they were accepted. Fourteen cases have yet to be scheduled for arguments.

Click the links below to learn more about these cases:

  • Johnson v. Arteaga-Martinez originated from the U.S. Court of Appeals for the 3rd Circuit and concerns detained non-citizens’ right to a bond hearing.
  • Garland v. Gonzalez concerns detained non-citizens’ right to a bond hearing and whether U.S. courts are allowed to grant classwide injunctive relief, halting an order commanding a party to either perform or not perform an action, in such cases. The case originated from the U.S. Court of Appeals for the 9th Circuit.
  • Ramirez v. Collier, originating from the U.S. Court of Appeals for the 5th Circuit, is a capital case concerning the type of aid a spiritual advisor is permitted to provide in an execution chamber.

Arguments

SCOTUS has scheduled nine cases for nine hours of oral argument since our August 9 issue. 

Click the links below to learn more about these cases:

November 1

November 2

November 3

November 8

November 9

November 10

To date, 13 cases accepted to the court’s merits docket have not yet been scheduled for arguments.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • September 27: SCOTUS will conference. A conference is a private meeting of the justices.
  • October 4: SCOTUS will hear arguments in two cases.
  • October 5: SCOTUS will hear arguments in two cases.
  • October 6: SCOTUS will hear arguments in one case.

SCOTUS trivia

Over the history of the U.S. Supreme Court, justices have been appointed from 31 different states. Which of the following has never been a home state of a SCOTUS justice at the time of their appointment?

  1. Alabama
  2. Delaware
  3. New Hampshire
  4. Utah

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 August 2 to September 1. 

Highlights

  • Vacancies: There have been four new judicial vacancies since the July 2021 report. There are 82 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 87 of 890 active federal judicial positions are vacant.  
  • Nominations: There were three new nominations since the July 2021 report. 
  • Confirmations: There was one confirmation since the July 2021 report.

Vacancy count for September 1, 2021

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

Four judges left active status since the previous vacancy count, creating Article III life-term judicial vacancies. The president nominates individuals to fill Article III judicial position vacancies. Nominations are subject to U.S. Senate confirmation.

The following chart tracks the number of vacancies in the United States Courts of Appeals from President Joe Biden‘s (D) inauguration to the date indicated on the chart.

U.S. District Court vacancies

The following map shows the number of vacancies in the United States District Courts as of September 1, 2021.

New nominations

President Biden announced three new nominations in August:

New confirmations

As of September 1, the Senate has confirmed nine of President Biden’s judicial nominees—five district court judges and four appeals court judges—since January 2021.

The first confirmations occurred on June 8, when Julien Neals and Regina Rodriguez were confirmed to their respective courts. 

Ketanji Brown Jackson, who was confirmed on June 14, was the first confirmed nominee to receive her judicial commission. Jackson was commissioned on June 17.

Comparison of Article III judicial appointments over time by president (1981-Present)

  • Presidents have made an average of four judicial appointments through September 1 of their first year in office. 
  • President Biden has made the most, nine, while Presidents Bill Clinton (D) and Barack Obama (D) had confirmed the fewest in that time with one each. 
  • President Ronald Reagan’s (R) 41 appointments signify the most through his first year. President Obama made the fewest with 13.
  • President Donald Trump’s (R) 234 appointments signify the most appointments through four years. President Reagan made the fewest through four years with 166.

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, keep an eye on this list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Today, we highlight President Herbert Hoover’s (R) federal judicial nominees from 1929 to 1933.


During his time in office, the U.S. Senate confirmed 69 of President Hoover’s judicial nominees. The Senate did not vote on or rejected 11 of Hoover’s nominees.

Among the most notable appointees were three Supreme Court Justices:

President Hoover’s first Article III appointees were confirmed on April 18, 1929—two nominees were confirmed to U.S. Courts of Appeal and five nominees were confirmed to U.S. District Courts. By the end of his first year in office, 18 of Hoover’s nominees had been confirmed–six to U.S. circuit courts, nine to U.S. district courts, one to the U.S. Court of Customs and Patent Appeals, and two to the U.S. Court of Federal Claims. 

Hoover averaged 17 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.

Looking ahead

We’ll be back on October 4 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

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




About the author

Kate Carsella

Kate Carsella is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.