Hello again, gentle readers! What an action-packed week we have on our hands: it’s election week, the second week of SCOTUS’ November sitting, and we have a fresh set of monthly data on the federal judiciary to unpack. Let’s mop our brows and gavel in, shall we?
If you haven’t yet seen, we’re keeping our readers up to date with special coverage and reporting of the 2022 midterm elections this week. Keep an eye on your inbox for exclusive analysis and results reporting up and down the ballot. You can also visit Ballotpedia for election results and ongoing analysis.
We #SCOTUS and you can, too!
Since our previous issue, SCOTUS has accepted three new cases to its merits docket.
On Nov. 4, the court granted review in the following cases:
- Amgen Inc. v. Sanofi originates from the U.S. Court of Appeals for the Federal Circuit and concerns federal patent applications.
- Abitron Austria GmbH v. Hetronic International, Inc. originates from the U.S. Court of Appeals for the 10th Circuit. The case involves the Lanham Act and trademark infringement claims.
- Arizona v. Navajo Nation (Consolidated with Department of the Interior v. Navajo Nation)
- originate from the U.S. Court of Appeals for the 9th Circuit and concern a water rights dispute over the Colorado River.
To date, the court has agreed to hear 39 cases during its 2022-2023 term.
The Supreme Court will hear arguments in five cases this week. Click here to read more about SCOTUS’ current term.
- Axon Enterprise, Inc. v. Federal Trade Commission concerns whether federal courts can hear constitutional challenges to the Federal Trade Commission’s (FTC) structure. Axon, a body camera company, acquired a competitor. The FTC ordered Axon to undo the acquisition on antitrust grounds. Axon sued the FTC for violating its right to due process, alleging the acquisition did not violate antitrust law and that the removal protections for the FTC’s administrative law judges are unconstitutional.
- Securities and Exchange Commission (SEC) v. Cochran concerns the subject-matter jurisdiction of U.S. district courts and questions whether the courts can concurrently hear constitutional challenges to the SEC’s administrative law judges in cases where the SEC has yet to issue a final decision.
- Mallory v. Norfolk Southern Railway Co. concerns the 14th Amendment’s due process clause and whether a state can require a corporation to agree to personal jurisdiction in order to do business in that state. Personal jurisdiction refers to a court’s authority to issue rulings over the parties in a case. The parties must have minimum contact with the court’s forum—the state—in order for the court to exercise this authority.
- Health and Hospital Corporation of Marion County, Indiana v. Talevski involves the U.S. Constitution’s Spending Clause, allowing Congress to raise taxes and spend money.
- Haaland v. Brackeen (Consolidated with Cherokee Nation v. Brackeen, Texas v. Haaland, Brackeen v. Haaland) concerns the Indian Child Welfare Act of 1978 (ICWA), governing the removal of out-of-home placement of American Indian children, and the Commerce Clause of the U.S. Constitution.
The court’s December argument sitting begins on Nov. 28. The court will hear arguments in nine cases.
Nine cases have not yet been added to the argument calendar.
SCOTUS has not issued any opinions since our previous edition.
The Federal Vacancy Count
The Nov. 1 report covers nominations, confirmations, and vacancies from Oct. 2 through Nov. 1. The U.S. Courts data used for this report is published on the first of each month and covers the previous month.
- Vacancies: There were two new judicial vacancies. There were 87 vacancies out of 870 active Article III judicial positions. Including the U.S. Court of Federal Claims and the U.S. territorial courts, 89 of 890 active federal judicial positions were vacant.
- Nominations: There was one new nomination.
- Confirmations: There were no new confirmations.
Vacancy count for Nov. 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 United States territorial courts are named as district courts, they are not Article III courts. They are created in accordance with the power granted under Article IV of the U.S. Constitution. Click here for more information.
Two judges left active status, 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 Charles Norgle assumed senior status on the U.S. District Court for the Northern District of Illinois
- Judge Stefan Underhill assumed senior status on the U.S. District Court for the District of Connecticut
The following chart compares the number of vacancies on the United States Courts of Appeals on the date of President Joe Biden’s (D) inauguration to vacancies on Nov. 1.
U.S. District Court vacancies
The following map shows the vacancy percentage in each of the United States District Courts as of Nov. 1, 2022.
The president has announced 142 Article III judicial nominations since taking office Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
The U.S. Senate has confirmed no new nominees since our previous edition.
As of Nov. 1, 2022, the Senate had confirmed 84 of President Biden’s judicial nominees—58 district court judges, 25 appeals court judges, and one Supreme Court justice.
Comparison of Article III judicial appointments over time by president (1981-Present)
- Presidents have appointed an average of 77 judges through Nov. 1 of their second year in office.
- President Bill Clinton (D) made the most appointments through Nov. 1 of his second year with 128. President Barack Obama (D) made the fewest with 43.
- 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 Nov. 28 with a new edition of Robe & Gavel to herald in the new SCOTUS term. Until then, gaveling out!
Kate Carsella compiled and edited this newsletter with contributions from Caitlin Styrsky, Myj Saintyl, and Sam Post.