Welcome to the Feb. 7 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.
Much of the country may be experiencing a cold winter, but the pages inside our newsletter are hot this week with lively judicial activity, including a big announcement from a SCOTUS justice. Let’s gavel in and get warm.
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Noteworthy court announcements
Here’s a quick roundup of the court’s most recent noteworthy announcements since the Jan. 18 edition of Robe & Gavel:
Justice Stephen Breyer to retire at end of court’s 2021-2022 term
On Jan. 27, Justice Stephen Breyer announced his intent to retire at the end of the court’s current term, provided his successor has been nominated and confirmed by that time. The court typically begins its summer recess in late June or early July. Breyer and President Joe Biden (D) spoke at the White House following the official announcement. Biden said he would nominate a new justice in February and intended to nominate a Black woman who, if confirmed, would be the first Black woman to serve on the court.
Justice Breyer has served on the Supreme Court since 1994. He was nominated by President Bill Clinton (D) and confirmed by the U.S. Senate on July 29, 1994. Breyer was previously a judge on the U.S. Court of Appeals for the 1st Circuit.
SCOTUS has accepted one new case to its docket for the current term and three cases for its 2022-2023 term since our Jan. 18 issue.
Click the links below to learn more about these cases:
- Oklahoma v. Castro-Huerta concerns state authority in Indian country and the scope of the U.S. Supreme Court’s ruling in the case McGirt v. Oklahoma (2020).
- Students for Fair Admissions, Inc. v. President & Fellows of Harvard, consolidated with Students for Fair Admissions, Inc. v. University of North Carolina, concerns the legality of institutions of higher education using race as a factor in admissions decisions.
- Axon Enterprise, Inc. v. Federal Trade Commission concerns the authority of federal courts to review constitutional challenges to the structure of the Federal Trade Commission before plaintiffs raise such challenges during agency hearings.
- Sackett v. Environmental Protection Agency concerns how to interpret the Clean Water Act to decide what land falls within the EPA’s wetland regulatory jurisdiction.
To date, the court has agreed to hear 65 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. Nine cases have yet to be scheduled for arguments. The court has also accepted three cases for its 2022-2023 term.
The Supreme Court will not hear oral arguments this week. The court is scheduled to begin hearing arguments for its February sitting on Feb. 22. Click here to read more about SCOTUS’ current term.
SCOTUS has issued two rulings since our Jan. 18 edition. The court has issued rulings in eight 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 Jan. 20, the court issued a ruling in Hemphill v. New York. The case concerned a criminal defendant’s constitutional right to confront the witnesses against him.
In an 8-1 opinion, SCOTUS held that the state trial court violated Hemphill’s Sixth Amendment right to confront witnesses against him when it admitted a written transcript of a former defendant’s plea hearing into evidence without making that defendant available at Hemphill’s trial for cross-examination. The court reversed the New York Court of Appeals’ decision and sent the case back to the state court for further proceedings. Justice Sonia Sotomayor wrote the court’s majority opinion. Justice Clarence Thomas dissented, writing that he believed the court did not have jurisdiction to hear the case.
On Jan. 24, the court ruled in Hughes v. Northwestern University. The case concerned defined-contribution retirement plans under the Employee Retirement Income Security Act of 1974 (ERISA).
In an 8-0 ruling, the court overturned the decision of the U.S. Court of Appeals for the 7th Circuit. It held that the lower courts erred in dismissing the ERISA plan participants’ suit because the courts did not properly consider an ERISA fiduciary’s duty to continually monitor plan investments. Justice Sotomayor delivered the court’s opinion. Justice Amy Coney Barrett did not participate in the decision due to her involvement in the case as a judge on the 7th Circuit.
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
- Feb. 18: SCOTUS will conference. A conference is a private meeting of the justices.
- Feb. 22: SCOTUS begins its February argument sitting.
Justice Stephen Breyer joined the U.S. Supreme Court in 1994. Which justice did Breyer replace on the 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 January report covers nominations, confirmations, and vacancies from Jan. 2 through Feb. 1.
- Vacancies: There were five new judicial vacancies covered in this report. There were 79 vacancies out of 870 active Article III judicial positions. Including the U.S. Court of Federal Claims and the U.S. territorial courts, 81 of 890 active federal judicial positions were vacant.
- Nominations: There were eight new nominations.
- Confirmations: There were five new confirmations.
Vacancy count for February 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.
Five judges left active status since the December 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 Michael Juneau assumed senior status on the U.S. District Court for the Western District of Louisiana.
- Judge Martin Feldman of the United States District Court for the Eastern District of Louisiana died on Jan. 26, 2022.
- Judge Elizabeth Foote assumed senior status on the U.S. District Court for the Western District of Louisiana.
- Judge Julie Robinson assumed senior status on the U.S. District Court for the District of Kansas.
- Judge Vanessa Gilmore retired from the U.S. District Court for the Southern District of Texas.
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 Feb. 1, 2022.
President Joe Biden (D) announced eight new nominations since the December report.
- Arianna Freeman, to the U.S. Court of Appeals for the Third Circuit
- Ana de Alba, to the U.S. District Court for the Eastern District of California
- Tiffany Cartwright, to the U.S. District Court for the Western District of Washington
- Nusrat Choudhury, to the U.S. District Court for the Eastern District of New York
- Robert Huie, to the U.S. District Court for the Southern District of California
- Natasha Merle, to the U.S. District Court for the Eastern District of New York
- Jennifer Rearden, to the U.S. District Court for the Southern District of New York
- Nina Y. Wang, to the U.S. District Court for the District of Colorado
Biden has announced 82 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
The U.S. Senate confirmed five nominees since the previous report.
- Holly Thomas, to the U.S. Court of Appeals for the 9th Circuit
- Gabriel Sanchez, to the U.S. Court of Appeals for the 9th Circuit
- Bridget Brennan, to the U.S. District Court for the Northern District of Ohio
- Charles Fleming, to the U.S. District Court for the Northern District of Ohio
- David Ruiz, to the U.S. District Court for the Northern District of Ohio
As of Feb. 1, 2022, the Senate had confirmed 45 of President Biden’s judicial nominees—32 district court judges and 13 appeals court judges.
Comparison of Article III judicial appointments over time by president (1981-Present)
- The average number of judicial appointees per president through Feb. 1 of the second year is 29.
- President Joe Biden (D) made the most appointments through Feb. 1 of his second year with 45, followed by President Ronald Reagan (R) with 41. President Barack Obama (D) made the fewest with 15.
- 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.
We’ll be back on Feb. 22 with a new edition of Robe & Gavel. Until then, gaveling out!
Brittony Maag compiled and edited this newsletter, with contributions from Kate Carsella and Jace Lington.