Welcome to the inaugural edition of Robe & Gavel for Nov. 8! As you may recall from our previous edition, this newsletter has transformed from its previous name, Bold Justice. But don’t touch that dial! We’re still bringing you all the latest on the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Let’s gavel in, shall we?

We #SCOTUS and you can, too!

Grants

SCOTUS has accepted three new cases to its merits docket since our Nov. 1 issue: 

• Ruan v. United States (Consolidated with Kahn v. United States) originated from the U.S. Court of Appeals for the 11th Circuit and concerns whether a physician prescribing controlled substances can be convicted for unlawful distribution of the drugs, regardless of whether the doctor believed they were acting in good faith in making those prescriptions.
• Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita, Inc. concerns the Medicare Secondary Payer Act, which prohibits group health plans from considering a plan participant’s eligibility when the individual has end-stage renal disease, and from providing different benefits to these individuals than from other covered participants. The case originated from the U.S. Court of Appeals for the 6th Circuit.
• Egbert v. Boule concerns the U.S. Supreme Court’s ruling in Bivens v. Six Unknown Federal Narcotics Agents (1971). In Bivens claims, private individuals may sue FBI agents for violating their Fourth, Fifth, and/or Eighth Amendment rights. The case originated from the U.S. Court of Appeals for the 9th Circuit.

To date, the court has agreed to hear 48 cases for the 2021-2022 term. SCOTUS dismissed three cases after they were accepted and removed one case from the argument calendar after both parties agreed to settle. Fifteen cases have yet to be scheduled for arguments.

Arguments

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

Click the links below to learn more about these cases:

Nov. 8

• Federal Bureau of Investigation v. Fazaga concerns the state-secrets privilege. Three Southern California residents who practice Islam filed a class-action lawsuit against the U.S. government, alleging the Federal Bureau of Investigation (FBI) paid a confidential informant to surveil Muslims based solely on their religious identity for more than a year as part of a counterterrorism investigation. Plaintiffs alleged that the program included unlawful searches and anti-Muslim discrimination. The U.S. government asserted the state-secrets privilege and moved to dismiss the case. The district court dismissed all but one of the plaintiffs’ claims. On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed in part and reversed in part the district court’s judgment and remanded the case for further proceedings. Click here to learn more about the case’s background.
  • The question presented: “Whether Section 1806(f) displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.”
    
• Unicolors, Inc. v. H&M Hennes & Mauritz, LP concerns copyright infringement claims. In 2011, fabric design corporation Unicolors, Inc. (“Unicolors”) registered copyrights for a group of 31 designs, nine of which were “confined” designs, reserved for specific customers’ exclusive use. In 2015, clothing retailer and designer H&M Hennes & Mauritz, LP (“H&M”) sold apparel using a design that Unicolors later alleged in U.S. district court infringed on its copyrighted designs. A jury found H&M liable for willful infringement. H&M appealed to the 9th Circuit, claiming Unicolors’ copyright registration included false information. The 9th Circuit ruled that Unicolors’ copyright application had known inaccuracies, reversed the district court’s judgment, and remanded the case for further proceedings. Click here to learn more about the case’s background. 
  • The question presented: “Did the Ninth Circuit err in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration?”

Nov. 9

• United States v. Vaello-Madero concerns the equal protection component of the Fifth Amendment’s due process clause as it applies to residents of Puerto Rico. The residents were denied benefits under the Supplemental Security Income (SSI) program of the Social Security Act. Click here to learn more about the case’s background. 
  • The question presented: “Whether Congress violated the equal-protection component of the Due Process Clause of the Fifth Amendment by establishing Supplemental Security Income-a program that provides benefits to needy aged, blind, and disabled individuals-in the 50 States and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.”
    
• Ramirez v. Collier involves what type of aid a spiritual advisor may provide to an individual during a death penalty execution. Click here to learn more about the case’s background. 
  • The questions presented: 
    • “(1) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc–5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest?
    • “(2) Under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc–2000cc–5 (2000), does the State’s decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require the State to justify the deprivation as the least restrictive means of advancing a compelling governmental interest?”

Nov. 10

• City of Austin, Texas v. Reagan National Advertising of Texas, Inc. concerns whether a municipal sign code restriction is constitutional. In 2017, outdoor advertising companies Reagan National Advertising of Austin and Lamar Advantage Outdoor Company (“Reagan”) applied to digitize its existing off-premises billboards with the City of Austin, Texas. The city denied the applications, citing its municipal sign code prohibiting the digitization of off-premises non-digital signs. Reagan sued the city in state court, alleging the code violated the First Amendment. In July 2017, the city moved the proceedings to the U.S. District Court for the Western District of Texas. In August, the city amended its sign code. The district court held the sign code was content-neutral and ruled in favor of the city. On appeal, the U.S. Court of Appeals for the 5th Circuit reversed the district court’s ruling and remanded the case for further proceedings. Click here to learn more about the case’s background.
  • The questions presented: “Is the city code’s distinction between on- and off-premise signs a facially unconstitutional content-based regulation under Reed?”

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

Opinions

SCOTUS has not issued any rulings in merits docket cases since our Nov. 1 edition. To date, the court has issued decisions in two cases—Rivas-Villegas v. Cortesluna and City of Tahlequah, Oklahoma v. Bond—both of which were decided without argument in per curiam rulings. A per curiam ruling is an unsigned opinion of the court as a whole.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• Nov. 8: 
  • SCOTUS will hear arguments in two cases.
  • SCOTUS will issue orders.
• Nov. 9: SCOTUS will hear arguments in two cases.
• Nov. 10: SCOTUS will hear arguments in one case.
• Nov. 12: SCOTUS will conference. A conference is a private meeting of the justices.
• Nov. 15: SCOTUS will issue orders.

SCOTUS trivia

Welcome, readers, to a special round of Name That Chief Justice Era! Based on the following clue, identify which SCOTUS Chief Justice era the description belongs to:

During ______’s tenure on the Court, he [created] new precedents for how to protect the United States and deal with enemies on United States soil. Though the ______ Court is remembered for constitutional questions decided, it was also marked by discord among the justices of the court.

1. The Vinson Court
2. The Warren Court
3. The Hughes Court
4. The Stone Court

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. The October report includes nominations, confirmations, and vacancies through November 1.

Highlights

• Vacancies: There have been four new judicial vacancies since the September 2021 report. There are 74 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, 78 of 890 active federal judicial positions are vacant.  
• Nominations: There have been no new nominations since the September 2021 report. 
• Confirmations: There have been 14 new confirmations since the September 2021 report.

Vacancy count for November 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 in the federal courts, click here.

*Though the U.S. territorial courts are named as district courts, they are not Article III courts. Rather, they are Article IV courts. 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 positions. Nominations are subject to U.S. Senate confirmation.

• Judge John A. Gibney assumed senior status on the U.S. District Court for the Eastern District of Virginia.
• Judge Michael Mills assumed senior status on the U.S. District Court for the Northern District of Mississippi.
• Judge Matthew Kennelly assumed senior status on the U.S. District Court for the Northern District of Illinois.
• Judge Gustavo Gelpí was elevated to the U.S. Court of Appeals for the 1st Circuit from the U.S. District Court for the District of Puerto Rico.

The following chart tracks the number of vacancies in the United States Courts of Appeals from the inauguration of President Joe Biden (D) 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 November 1, 2021.

New nominations

President Joe Biden (D) announced no new nominations since the September 2021 report.

Biden has announced 60 Article III judicial nominations since taking office on January 20, 2021. For more information on the president’s judicial nominees, click here.

New confirmations

There have been no new confirmations since the September 2021 report. Cumulatively, the Senate has confirmed 28 of President Biden’s judicial nominees—19 district court judges and nine appeals court judges—since January 2021.

U.S. circuit courts:

• Gustavo Gelpí, to the U.S. Court of Appeals for the 1st Circuit
• Eunice Lee, to the U.S. Court of Appeals for the 2nd Circuit
• Myrna Pérez, to the U.S. Court of Appeals for the 2nd Circuit
• Beth Robinson, to the U.S. Court of Appeals for the 2nd Circuit
• Toby Heytens, to the U.S. Court of Appeals for the 4th Circuit
• Candace Jackson-Akiwumi, to the U.S. Court of Appeals for the 7th Circuit
• Veronica Rossman, to the U.S. Court of Appeals for the 10th Circuit
• Ketanji Brown Jackson, to the U.S. Court of Appeals for the District of Columbia Circuit
• Tiffany Cunningham, to the U.S. Court of Appeals for the Federal Circuit

U.S. district courts:

• Regina Rodriguez, to the U.S. District Court for the District of Colorado
• Sarah A.L. Merriam, to the U.S. District Court for the District of Connecticut
• Sarala Nagala, to the U.S. District Court for the District of Connecticut
• Omar A. Williams, to the U.S. District Court for the District of Connecticut
• Florence Pan, to the U.S. District Court for the District of Columbia
• Jia Cobb, to the U.S. District Court for the District of Columbia
• Deborah Boardman, to the U.S. District Court for the District of Maryland
• Lydia Kay Griggsby, to the U.S. District Court for the District of Maryland
• Angel Kelley, to the U.S. District Court for the District of Massachusetts
• Julien Xavier Neals, to the U.S. District Court for the District of New Jersey
• Zahid Quraishi, to the U.S. District Court for the District of New Jersey
• Christine O’Hearn, to the U.S. District Court for the District of New Jersey
• Karen Williams, to the U.S. District Court for the District of New Jersey
• Margaret Strickland, to the U.S. District Court for the District of New Mexico
• Patricia Tolliver Giles, to the U.S. District Court for the Eastern District of Virginia
• Michael Nachmanoff, to the U.S. District Court for the Eastern District of Virginia
• David G. Estudillo, to the U.S. District Court for the Western District of Washington

• Lauren King, to the U.S. District Court for the Western District of Washington
• Tana Lin, to the U.S. District Court for the Western District of Washington

The first confirmations occurred on June 8, 2021, when Julien Xavier Neals and Regina Rodriguez were confirmed to their respective courts. 

Ketanji Brown Jackson was the first confirmed nominee to receive her judicial commission. The Senate confirmed Jackson on June 14, 2021, and she was commissioned three days later on June 17.

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

• Presidents have made an average of 13 judicial appointments through Nov. 1 of their first year in office. 
• President Biden has made the most appointments, 28, while President Barack Obama (D) made the fewest appointments with five.  
• President Ronald Reagan’s (R) 41 appointments were the most through a first year. President Obama (D) made the fewest with 13.
• President Donald Trump’s (R) 234 appointments were 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

Hello, gentle readers! Our journey through federal judicial history continues as we visit the presidency of a future (the tenth) SCOTUS chief justice! Today, we highlight President William Howard Taft’s (R) federal judicial nominees from 1909 to 1913.

During his time in office, the U.S. Senate confirmed 61 of President Taft’s judicial nominees. The Senate did not vote on 13 of Taft’s nominees. Five nominees were withdrawn.

Among the most notable appointees were six Supreme Court Justices:

• Horace Harmon Lurton, commissioned in 1909.
• Charles Evans Hughes, commissioned in 1910. Hughes was the court’s eleventh chief justice from 1930 to 1941.
• Joseph Rucker Lamar, commissioned in 1910.
• Willis Van Devanter, commissioned in 1910.
• Edward Douglass White, commissioned in 1910 as the Chief Justice of the Supreme Court. He was the ninth chief of the court. White was first commissioned to SCOTUS in 1894 as an associate justice.
• Mahlon Pitney, commissioned in 1912.

President Taft’s first Article III appointee was confirmed on March 16, 1909—John Wesley Warrington was confirmed to the U.S. Court of Appeals for the 6th Circuit. By the end of his first year in office, 10 of Taft’s nominees had been confirmed–two to U.S. circuit courts, and eight to U.S. district courts. 

Taft averaged 14.5 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 Nov. 29 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

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