Welcome to the Jan. 10 edition of Robe & Gavel, our first for 2022. Robe & Gavel is Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

I hope your robe is fleece-lined and your gavel comes with a warm mug of cheer. Let’s gavel in, shall we?

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Noteworthy court announcements

Here’s a quick roundup of the court’s most recent noteworthy announcements since the Dec. 6 edition of Robe & Gavel:

Court schedules oral arguments in COVID vaccine-related emergency appeals

• Dec. 22-30, 2021: SCOTUS scheduled special hearings in cases for Jan. 7, 2022, to consider whether the government can enforce the Biden administration’s vaccine policies during ongoing lower court litigation. 

One line of appeals, in the cases National Federation of Independent Businesses v. Department of Labor and Ohio v. Department of Labor, concerns the mandate for businesses with more than 100 employees, commonly referred to as the vax-or-test mandate. 

The other line of appeals, in cases Biden v. Missouri and Becerra v. Louisiana, concerns the Biden administration’s request for permission to enforce a rule requiring health care workers participating in federal Medicare and Medicaid programs to be fully vaccinated. Lower court rulings blocked the mandate in approximately half of the states. 

Grants

SCOTUS has accepted six new cases to its merits docket since our Dec. 6 issue. 

Click the links below to learn more about these cases:

• Southwest Airlines v. Saxon concerns the definition of transportation workers for exemption from the Federal Arbitration Act. 
• Golan v. Saada involves international law when a minor child is abducted across national borders during a domestic dispute.
• ZF Automotive US, Inc. v. Luxshare, Ltd., consolidated with AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, concern U.S. district courts’ authority to compel evidence in private arbitration for foreign or international tribunals. 
• LeDure v. Union Pacific Railroad Company involves the meaning of a locomotive being in use for liability purposes under the Locomotive Inspection Act (LIA). 
• Viking River Cruises, Inc. v. Moriana involves a potential conflict between federal and state arbitration law.
• Torres v. Texas Department of Public Safety concerns the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and sovereign immunity. 

To date, the court has agreed to hear 56 cases for the 2021-2022 term. SCOTUS dismissed four cases after they were accepted and removed one case from the argument calendar after both parties agreed to settle. Eight 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:

Jan. 10

• Gallardo v. Marstiller, concerning tort claims and state Medicaid program reimbursement.

Jan. 11

• Johnson v. Arteaga-Martinez and Garland v. Gonzalez concern non-citizens’ right to a bond hearing in immigration detention.

Jan. 12

• Boechler, P.C. v. Commissioner of Internal Revenue, concerning the time limit to file petitions with the U.S. Tax Court to review Internal Revenue Service (IRS) determinations.

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

Opinions

SCOTUS has issued two rulings since our Dec. 6 edition. The court has issued rulings in five cases so far this term, two of which were decided without argument. 

Click the links below to read more about the court’s opinions:

On Dec. 10, 2021, the court issued rulings in Whole Woman’s Health v. Jackson and United States v. Texas. Both cases concerned Texas state law S.B. 8 that restricts abortion procedures after six weeks of pregnancy and authorizes private citizens to bring civil actions against individuals for aiding a patient with getting an abortion.

In Whole Woman’s Health, the court affirmed in part and reversed in part the U.S. district court’s order denying motions to dismiss the case, and remanded the case for further proceedings. SCOTUS held that lawsuits filed before the law has been enforced could proceed against certain defendants but not others. 

In an 8-1 decision authored by Justice Neil Gorsuch, the court held that abortion providers may sue state licensing officials in federal court to prevent the state law’s enforcement under Ex parte Young’s (1908) sovereign immunity doctrine exception. Justice Clarence Thomas dissented. 

The court also issued a 5-4 ruling that abortion providers could not sue state judges and clerks to block them from trying private lawsuits related to S.B. 8. Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett were in the majority, and Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. The court noted that it was not ruling on the constitutionality of S.B. 8 itself.

In a per curiam decision, the court dismissed United States v. Texas from its merits docket as improvidently granted, meaning that the court ruled that it should not have taken up the case. 

Between 2007 and 2020, SCOTUS released opinions in 1,062 cases, averaging between 70 and 90 decided cases per year.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• Jan. 10: 
  • SCOTUS will hear arguments in one case.
  • SCOTUS will release orders.
• Jan. 11: SCOTUS will hear arguments in two cases.
• Jan. 12: SCOTUS will hear arguments in one case.
• Jan. 14: SCOTUS will conference. A conference is a private meeting of the justices.

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 December report covers nominations, confirmations, and vacancies from Dec. 2 through Jan. 1. 

Highlights

• Vacancies: There were nine new judicial vacancies covered in this report. There were 74 vacancies out of 870 active Article III judicial positions. Including the U.S. Court of Federal Claims and the U.S. territorial courts, 76 of 890 active federal judicial positions were vacant.  
• Nominations: There were 11 new nominations. 
• Confirmations: There were 12 new confirmations.

Vacancy count for January 1, 2022

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. They are established by Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Nine judges left active status since the Dec. 1 report, 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 Francisco Besosa assumed senior status on the U.S. District Court for the District of Puerto Rico.
• Judge Timothy Burgess assumed senior status on the U.S. District Court for the District of Alaska.
• Judge Henry Floyd assumed senior status on the U.S. Court of Appeals for the 4th Circuit.
• Judge Lucy H. Koh left the U.S. District Court for the Northern District of California upon her elevation to the U.S. Court of Appeals for the 9th Circuit.
• Judge William Kuntz assumed senior status on the U.S. District Court for the Eastern District of New York.
• Judge Michael Mosman assumed senior status on the U.S. District Court for the District of Oregon.
• Judge Susan Richard Nelson assumed senior status on the U.S. District Court for the District of Minnesota.
• Judge Cynthia Rufe assumed senior status on the U.S. District Court for the Eastern District of Pennsylvania.
• Judge Brooks Smith assumed senior status on the U.S. Court of Appeals for the 3rd Circuit.

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 Jan. 1, 2022.

New nominations

President Joe Biden (D) announced 11 new nominations since the Dec. 1 report.

• Nancy Gbana Abudu, to the U.S. Court of Appeals for the 11th Circuit
• J. Michelle Childs, to the U.S. Court of Appeals for the District of Columbia Circuit
• Jessica Clarke, to the U.S. District Court for the Southern District of New York
• Sherilyn P. Garnett, to the U.S. District Court for the Central District of California
• Hector Gonzalez, to the U.S. District Court for the Eastern District of New York
• Kenly Kiya Kato, to the U.S. District Court for the Central District of California
• Nina Morrison, to the U.S. District Court for the Eastern District of New York
• William Pocan, to the U.S. District Court for the Eastern District of Wisconsin
• Jennifer Rochon, to the U.S. District Court for the Southern District of New York
• Fred W. Slaughter, to the U.S. District Court for the Central District of California
• Sunshine S. Sykes, to the U.S. District Court for the Central District of California

Biden has announced 73 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.

New confirmations

There were 12 new confirmations since the previous report.

• Lucy H. Koh, to the U.S. Court of Appeals for the 9th Circuit
• Jennifer Sung, to the U.S. Court of Appeals for the 9th Circuit
• Jane Beckering, to the U.S. District Court for the Western District of Michigan
• Mary Dimke, to the U.S. District Court for the Eastern District of Washington
• Samantha Elliott, to the U.S. District Court for the District of New Hampshire
• Maame Ewusi-Mensah Frimpong, to the U.S. District Court for the Central District of California
• Shalina Kumar, to the U.S. District Court for the Eastern District of Michigan
• Linda Lopez, to the U.S. District Court for the Southern District of California
• Katherine Menendez, to the U.S. District Court for the District of Minnesota
• Jinsook Ohta, to the U.S. District Court for the Southern District of California
• Jennifer L. Thurston, to the U.S. District Court for the Eastern District of California
• David Herrera Urias, to the U.S. District Court for the District of New Mexico

Since January 2021, the Senate has confirmed 40 of President Biden’s judicial nominees—29 district court judges and 11 appeals court judges.

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

• The average number of judicial appointees per president through Jan. 1 of the second year is 26.
• President Ronald Reagan (R) made the most appointments through his first year with 41, followed by President Joe Biden (D) with 40. President Barack Obama (D) made the fewest with 13.
• President Donald Trump (R) made the most appointments through four years with 234. 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.

Looking ahead

We’ll be back next year on Jan. 18, 2022, with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

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