Bold Justice: SCOTUS holds November sitting
It’s full steam ahead as SCOTUS enters the second month of its 2021-2022 term. Buckle up for an exciting lineup of cases, including two on Nov. 1 that came to the court under atypical circumstances. Let’s get to it!
Brief station note
By the pricking of my thumbs, something wicked this way comes… Or, we’d like to think, something *witty* this way comes. Yes, dear readers, this newsletter is making a bit of a change. A name change, to be exact. Starting with the next edition on Nov. 8, Bold Justice shall transform and become known as Robe & Gavel. We’ll still be delivering all the latest on SCOTUS and federal courts activity, so don’t think we’ve ghosted you and please keep a weather eye on the horizon for our forthcoming editions. Thank you!
We #SCOTUS and you can, too!
On Nov. 1, SCOTUS will begin its next argument session, hearing five cases during the first week of November. As of this writing, the court is scheduled to hear 11 hours and 5 minutes of oral arguments in 10 cases during the session. The court will hear arguments in person and stream live audio of the arguments. However, the court will remain closed to the public as part of its COVID-19 safety precautions.
Click the links below to read more about the specific cases before SCOTUS during the first week of its November sitting.
Whole Woman’s Health v. Jackson concerns Texas law S.B. 8. The law bans abortion procedures after six weeks of pregnancy and authorizes a private civil right of action related to violations of the law. That means private citizens, including citizens residing outside of the state of Texas, can bring civil actions against individuals for helping a patient get an abortion. The bill does not authorize state officials to enforce the law, nor bring criminal proceedings, potentially precluding federal judicial review.
Whole Woman’s Health et al, a group of Texas abortion providers, challenged the law’s provision that private citizens could enforce it through civil suits. Petitioners also alleged the law violates the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) and the established constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The Supreme Court limited its review of the case to the former issue regarding the law’s private enforcement mechanism.
The question presented: “[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”
United States v. Texas concerns whether the federal government has the right to challenge Texas law S.B. 8 in federal court. The U.S. Department of Justice (DOJ) sought an order from the U.S. District Court for the Western District of Texas to stop Texas and any state employees or agents from enforcing the law while the courts determined the law’s validity. The district court granted the DOJ’s request on Oct. 6. The state appealed to the U.S. Court of Appeals for the 5th Circuit, and on Oct. 14, the 5th Circuit stayed, or paused, the district court’s ruling to block enforcement, allowing S.B. 8’s enforcement to resume.
In response, the DOJ filed an emergency appeal with the U.S. Supreme Court to vacate the 5th Circuit’s ruling. SCOTUS allowed the 5th Circuit’s ruling to stand. However, SCOTUS converted the DOJ’s application into a petition for writ of certiorari before judgment—meaning that SCOTUS would hear arguments in the case on the merits before the lower court issued a ruling. The Supreme Court granted review on Oct. 22 and scheduled arguments.
The question presented: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.”
Both cases came to the court on a writ of certiorari before the 5th Circuit issued a final judgment, which is rare in appellate court practice. According to Supreme Court Rule 11, a writ of certiorari before judgment “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Houston Community College System v. Wilson concerns free speech protections and limitations on an elected governing body’s authority to censure a member’s speech. David Wilson was an elected member of the Houston Community College System’s board of trustees. In 2017, Wilson alleged that some members had violated the board’s bylaws and publicly criticized some of the board’s and the school’s actions. Wilson filed two lawsuits in state court to stop the actions. The board censured Wilson, barring him from holding officer positions with the board and requiring him to cease and desist. Wilson claimed the censure violated his constitutional rights to free speech and equal protection. The case moved to the U.S. District Court for the Southern District of Texas. The court dismissed the case, holding that Wilson had not demonstrated an actual injury and did not have legal standing to continue the suits. On appeal, the U.S. Court of Appeals for the 5th Circuit reversed the ruling and remanded the case for further proceedings.
The question presented: “Does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member’s speech?”
Badgerow v. Walters concerns the federal courts’ jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act. After the Financial Industry Regulatory Authority (FINRA) ruled against her, petitioner Denise Badgerow filed suit in Louisiana state court to vacate FINRA’s award, alleging the defendants–Badgerow’s former employers Greg Walters, Thomas Meyer, and Ray Trosclair–committed fraud. The defendants then transferred the case from state court to federal court. Badgerow objected, arguing that the federal court lacked legal authority to hear the case.
Using the U.S. Supreme Court’s analysis established in Vaden v. Discover Bank (2009) for claims brought under the Federal Arbitration Act (FAA), the U.S. District Court for the Eastern District of Louisiana held that the parties’ underlying dispute could have been brought in federal court and federal jurisdiction over the FAA petition was valid. On appeal, the U.S. Court of Appeals for the 5th Circuit affirmed the ruling.
The question presented: “Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the FAA where the only basis for jurisdiction is that the underlying dispute involved a federal question.”
New York State Rifle & Pistol Association Inc. v. Corlett concerns an individual’s right to carry a firearm for self-defense under the Constitution’s Second Amendment. Robert Nash and Brandon Koch each applied for a concealed-carry firearm license for the purpose of self-defense. The licensing officer denied both applications, finding that neither individual met the proper cause standard that New York law requires in order to issue a firearms license for general self-defense.
New York courts have defined proper cause as requiring the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community.”
Nash and Koch filed a lawsuit with the U.S. District Court for the Northern District of New York for violation of their Second Amendment rights. The district court dismissed the suit, citing the 2nd Circuit’s ruling in Kachalsky v. County of Westchester (2012) that New York’s proper cause requirement did not violate the Second Amendment. On appeal, the United States Court of Appeals for the 2nd Circuit affirmed the judgment.
The question presented: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”
SCOTUS accepted four cases to its merits docket since our Oct. 12 issue. The court has granted review in a total of 43 cases for the 2021-2022 term. Three cases were dismissed and one case was removed from the argument calendar. Ten cases have not yet been scheduled for argument.
- Ysleta del Sur Pueblo v. Texas concerns the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act (1987), the Indian Gaming Regulatory Act (IGRA) (1988), gaming regulation on tribal lands, and the sovereign authority of Native American tribal nations. The question the court will decide is: “Whether the Restoration Act provides the Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the Act’s legislative history, and this Court’s holding in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), or whether the Fifth Circuit’s decision affirming Ysleta I (1994) correctly subjects the Pueblo to all Texas gaming regulation.” Ysleta del Sur Pueblo came from the U.S. Court of Appeals for the 5th Circuit. SCOTUS granted review in the case on Oct. 18.
- Denezpi v. United States concerns the Court of Indian Offenses’ jurisdiction, the double jeopardy clause of the U.S. Constitution’s Fifth Amendment, and the dual-sovereignty doctrine. The question presented to the court asks: “Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?” Denezpi came from the U.S. Court of Appeals for the 10th Circuit. SCOTUS granted review on Oct. 18.
- Whole Woman’s Health v. Jackson and United States v. Texas concern Texas law S.B. 8 and are discussed in greater detail in the November sitting section above. SCOTUS granted review in both cases on Oct. 22.
Since our Oct. 12 issue, SCOTUS issued the first two opinions of its 2021 term. On Oct. 18, the court issued per curiam rulings in Rivas-Villegas v. Cortesluna and City of Tahlequah, Oklahoma v. Bond. In both cases, the court ruled that the police officers had qualified immunity for actions performed while on duty, meaning the officers could not be held personally responsible for monetary damages resulting from a lawsuit for violations of a person’s constitutional rights. A per curiam ruling is an opinion issued in the name of the court rather than by specific judges.
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
- Nov. 1: SCOTUS will hear arguments in two cases.
- Nov. 2: SCOTUS will hear arguments in two cases.
- Nov. 3: SCOTUS will hear arguments in one case.
- Nov. 5: SCOTUS will conference. A conference is a private meeting of the justices.
Who was the chief justice when the Supreme Court decided Roe v. Wade?
Choose an answer to find out!
Federal court action
President Joe Biden (D) has not announced any new Article III nominees since our Oct. 12 edition. Since taking office on Jan. 20, 2021, Biden has announced a total of 51 Article III judicial nominations. For more information on the president’s judicial nominees, click here.
The Senate Judiciary Committee has voted on five new Article III nominees since our Oct. 12 edition.
Four nominees were reported favorably:
- Beth Robinson, to the U.S. Court of Appeals for the Second Circuit
- Jane Beckering, to the U.S. District Court for the Western District of Michigan
- Lucy Koh, to the U.S. Court of Appeals for the 9th Circuit
- Shalina Kumar, to the U.S. District Court for the Eastern District of Michigan
One nominee was not reported favorably:
The Senate Judiciary Committee split 10-10 on the vote to advance Sung’s nomination to the full Senate. To move Sung’s nomination forward, the Senate must vote to discharge it from the committee.
Ten of Biden’s nominees have been confirmed since our last issue:
- Oct. 18: Gustavo Gelpí, to the U.S. Court of Appeals for the 1st Circuit, by a vote of 52-41
- Oct. 19: Christine O’Hearn, to the U.S. District Court for the District of New Jersey,by a vote of 53-44
- Oct. 21: Tana Lin, to the U.S. District Court for the Western District of Washington, by a vote of 53-44
- Oct. 25: Myrna Pérez, to the U.S. Court of Appeals for the 2nd Circuit, by a vote of 48-43
- Oct. 26:
- Jia Cobb, to the U.S. District Court for the District of Columbia, by a vote of 52-45
- Patricia Tolliver Giles, to the U.S. District Court for the Eastern District of Virginia, by a vote of 68-27
- Karen Williams, to the U.S. District Court for the District of New Jersey, by a vote of 56-38
- Oct. 27:
- Michael Nachmanoff, to the U.S. District Court for the Eastern District of Virginia, by a vote of 52-46
- Sarala Nagala, to the United States District Court for the District of Connecticut, by a vote of 52-46
- Oct. 28:
- Omar Antonio Williams, to the U.S. District Court for the District of Connecticut, by a vote of 52-46
The federal judiciary currently has 78 vacancies, 72 of which are for lifetime Article III judgeships.
According to the Administrative Office of U.S. Courts, there were 29 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.
For more information on judicial vacancies during Biden’s term, click here.
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, keep an eye on our list for updates on federal judicial nominations.
Spotlight: Presidential nominations to federal courts
Hello again, gentle reader! Another issue, another president illuminated in our exploration of federal court nominations through time. This week we look back at a two-term president who led the country through the world’s first great war. The time was 1913-1921 and President Woodrow Wilson (D) was at the helm.
During his tenure, President Wilson nominated 75 federal judges who were successfully confirmed and commissioned to the bench. Two nominees declined their nominations and the U.S. Senate either rejected or did not vote on seven nominees.
Among the most notable appointees were three Supreme Court justices:
- James McReynolds, nominated and commissioned in 1914
- Louis Brandeis, nominated and commissioned in 1916
- John Clarke, nominated and commissioned in 1916
On Mar. 28, 1913, President Wilson made his first appointment to an Article III court–the recess appointment of Rhydon Mays Call to the U.S. District Court for the Southern District of Florida. Call was nominated to the post on Apr. 12 and confirmed on Apr. 24. By the end of Wilson’s first year in office, eight of his Article III nominees had been confirmed–three to the U.S. circuit courts and five to the U.S. district courts.
Wilson averaged 9.9 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.
We’ll be back on Nov. 30 with a new edition of the newsletter in its new incarnation as Robe & Gavel. Until then, gaveling out!