Bold Justice: SCOTUS is back in session!

By

Ballotpedia staff

Bold Justice: SCOTUS begins October term 2021

Welcome to the October 4 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

It’s October and we all know what that means—the court is back in session! The October 2021-2022 term has begun. Let’s gavel in and see what’s on the docket, shall we?

Stay up to date on the latest news by following Ballotpedia on Twitter or subscribing to the Daily Brew.

We #SCOTUS and you can, too!

Noteworthy court announcements

Here’s a quick roundup of the court’s most recent noteworthy announcements since the September 13 edition of Bold Justice:

Justice Brett Kavanaugh tests positive for coronavirus

  • On October 1, SCOTUS announced that Justice Brett Kavanaugh tested positive for coronavirus. The court stated that Kavanaugh tested positive on Thursday, September 30, following a routine test, adding that he was asymptomatic and was fully vaccinated in January 2021. Kavanaugh would not attend the October 1 investiture ceremony for Justice Amy Coney Barrett. The other eight justices and Justice Kavanaugh most recently tested negative on Monday, September 27, prior to the justices’ conference.

Court releases COVID-19 procedures for oral arguments during October, November, December sittings

  • On September 27, SCOTUS released new procedures for oral arguments during the term’s October, November, and December sittings, in accordance with the court’s COVID-19 protocols. 

According to the clerk of court’s announcement:

  1. Legal counsel presenting their cases in person must take a COVID test the morning before argument.
  2. Attorneys who test positive for COVID will participate remotely via teleconference.
  3. Counsel will be informed of courtroom procedures and may ask questions in the lawyer’s lounge before presenting their case. Argument audio will be made available in the lawyer’s lounge. Counsel must leave the court building once arguments in their case conclude.
  4. Counsel are required to wear masks covering their noses and mouths at all times while within the court building, except when eating or drinking. Counsel are required to wear N95 or KN95 masks in the courtroom, except when presenting arguments. The court will provide masks.

The court also released new questioning procedures for oral argument for the 2021 term. At the end of each attorney’s time, the court will ask additional questions justice by justice, in order of seniority.

The court previously announced that it would hear oral arguments in person for the first time since March 4, 2020. Argument audio will be streamed live to the public, following the precedent set during the 2020-2021 term. Audio files and argument transcripts will be posted on the court’s website following oral argument each day.

Grants

SCOTUS has accepted five new cases to its merits docket since our September 13 issue. To date, the court has agreed to hear 39 cases for the 2021-2022 term. SCOTUS dismissed two cases after they were accepted. Nine cases have yet to be scheduled for arguments.

Arguments

The Supreme Court will hear five hours of arguments this week. Click here to read more about SCOTUS’ current term.

Click the links below to learn more about these cases:

Oct. 4

  • Mississippi v. Tennessee concerns a dispute between Mississippi and Tennessee involving an aquifer’s groundwater. The case comes under the court’s original jurisdiction as it is a dispute among states, meaning SCOTUS is the first court to hear the case.
    • The questions presented: 
      • Whether Mississippi can seek relief from Tennessee over its use of approximately 252 billion gallons of groundwater at issue;
      • Whether Mississippi has sole authority over and control of the aquifer’s groundwater; and
      • Whether Mississippi is entitled to damages and other equitable relief as a result of Tennessee’s use of the groundwater.
  • Wooden v. United States concerns the Fourth Amendment to the U.S. Constitution and how predicate offenses are considered and classified under the Armed Career Criminal Act (ACCA). A predicate offense is a crime that may be considered a component of a larger crime.
    • The questions presented: 
      • When local sheriff’s department officers entered and searched William Wooden’s home without a warrant, did they violate Wooden’s Fourth Amendment protections from illegal search and seizure?
      • Were the lower courts in the case wrong in their conclusion that 10 prior felony offenses committed as part of a single event counted as separate crimes rather than a single predicate crime, therefore classifying Wooden as an armed career criminal under the ACCA?

Oct. 5

  • Brown v. Davenport concerns a circuit split over the standard necessary to grant federal habeas relief to a person held in state custody. A writ of habeas corpus is used in federal courts to determine if an individual’s imprisonment is lawful. A circuit split occurs when two or more U.S. circuit courts issue rulings with opposite interpretations of federal law.
    • The questions presented: Whether a U.S. court may grant habeas relief based solely on concluding that the Brecht v. Abrahamson (1993) test is satisfied, as the U.S. Court of Appeals for the Sixth Circuit held, or must the court also find that the state court’s Chapman v. California (1967) application was unreasonable, as the Second, Third, Seventh, Ninth, and Tenth Circuits have held.
    • The Brecht test established that habeas relief must be granted when a trial error substantially injured or influenced the jury’s verdict. The Chapman standard for direct appeals requires that a trial error must be proven harmful beyond a reasonable doubt.
  • Servotronics, Inc. v. Rolls-Royce PLC concerns a circuit split over evidence gathering in foreign or international tribunals.
    • The questions presented: Whether U.S. district courts’ authority to assist in evidence gathering in a foreign or international tribunal includes private commercial arbitration proceedings, as the U.S. Court of Appeals for the Fourth and Sixth Circuits have held, or excludes these tribunals, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held. The latter courts ruled that U.S. district courts may only assist in state-sponsored foreign tribunals. The Sixth Circuit found that a private foreign arbitral tribunal is a foreign or international tribunal.

Oct. 6

  • United States v. Zubaydah concerns the state-secrets privilege, an evidentiary rule that allows the government to withhold information if disclosure would harm national security. 
    • The questions presented: Whether the U.S. Court of Appeals for the 9th Circuit was wrong when it a) rejected the United States’ assertion of the state-secrets privilege and b) required limited discovery over nonprivileged information to proceed against former Central Intelligence Agency (CIA) contractors. 
    • Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah and a former associate of Osama bin Laden, was detained in Poland by the CIA. The former contractors allegedly tortured Zubaydah during his detention.

In its October 2020 term, SCOTUS heard arguments in 62 cases. Click here to read more about SCOTUS’ previous term.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • Oct. 4: SCOTUS will hear arguments in two cases.
  • Oct. 5: SCOTUS will hear arguments in two cases.
  • Oct. 6: SCOTUS will hear arguments in one case.
  • Oct. 8: SCOTUS will conference. A conference is a private meeting of the justices.
  • Oct. 12: SCOTUS will hear arguments in two cases.
  • Oct. 13: SCOTUS will hear arguments in two cases.
  • Oct. 15: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

The Judiciary Act of 1789 created the federal court system outlined in Article III of the U.S. Constitution. Article III only authorizes “one supreme Court,” but gives Congress the power to create “inferior Courts…from time to time.”

In addition to creating federal courts, the Act also created which of the following positions?

  1. U.S. Attorney General 
  2. Clerk of Court
  3. U.S. Marshal
  4. All of the above

Choose an answer to find out!

Federal court action

Nominations

President Joe Biden (D) has announced 10 new Article III nominees since our September 13 edition.

The president has announced 51 Article III judicial nominations since taking office on January 20, 2021. For more information on the president’s judicial nominees, click here.

Committee action

The Senate Judiciary Committee has reported five new nominees out of committee since our September 13 edition.

Confirmations

The Senate has confirmed five nominees since our September 13 issue. 

Vacancies

The federal judiciary currently has 86 vacancies, 81 of which are for lifetime Article III judgeships. As of publication, there were 37 pending nominations.

According to the Administrative Office of U.S. Courts, there were 31 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.

For more information on judicial vacancies during President Biden’s term, click here.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count 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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Hello, gentle readers! This installment of our journey through federal judicial history invites us to run some rum and cool our heels to the exuberant sounds of Louis Armstrong’s brass trumpet. Today, we visit the years between 1923 and 1929, highlighting President Calvin Coolidge’s (R) federal judicial nominees.

During his time in office, the U.S. Senate confirmed 88 of President Coolidge’s judicial nominees. The Senate did not vote on or rejected 14 of Coolidge’s nominees. One nominee declined the nomination and four nominees were withdrawn.

Among the most notable appointees was one Supreme Court Justice:

By the end of his first year in office, none of President Coolidge’s nominees had been confirmed. Coolidge’s first Article III appointees were confirmed on January 8, 1924—two nominees were confirmed to U.S. District Courts. 

Coolidge averaged 12.2 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 12 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.