Thanksgiving remains in the air and we’d like to thank you, our readers, for your continued support. We’re grateful for the opportunity to share these updates with all of you. Let’s gavel in, shall we?
We #SCOTUS and you can, too!
Since our previous issue, SCOTUS has accepted two new cases to its merits docket.
Click the links below to learn more about each case:
Dubin v. United States originated from the U.S. District Court for the Southern District of Florida. The question presented is whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.
- A predicate offense is a crime that may be considered a component of a larger crime.
Jack Daniel’s Properties, Inc. v. VIP Products LLC concerns intellectual property claims, specifically humorous use of another entity’s trademark as a commercial product. The case originated from the U.S. Court of Appeals for the 9th Circuit.
To date, the court has agreed to hear 41 cases during its 2022-2023 term. Thirty-four cases have been scheduled for argument.
The court’s December argument sitting begins on Nov. 28. SCOTUS will hear arguments in four cases this week. Click the links below to learn more about these cases:
Nov. 28, 2022
Percoco v. United States concerns the standard of evidence required to convict individuals of federal fraud and bribery.
- The question presented: “Does a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decision making, owe a fiduciary duty to the general public such that he can be convicted of honest-services fraud?”
Ciminelli v. United States also concerns the standard of evidence required to convict individuals of federal fraud and bribery.
- The question presented: “Whether the Second Circuit’s right to control theory of fraud-which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud-states a valid basis for liability under the federal wire fraud statute, 18 U.S.C. § 1343.”
Nov. 29, 2022
United States v. Texas (2022) The case concerns a state’s ability to challenge the U.S. Department of Homeland Security’s (DHS) guidance on immigration enforcement and whether that guidance violates federal immigration law and the Administrative Procedure Act (APA).
- The questions presented:
- “Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law;
- “Whether the Guidelines are contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violate the Administrative Procedure Act; and
- “Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. §706(2).”
Nov. 30, 2022
In Wilkins v. United States, Larry Steven Wilkins and Jane Stanton own property in Ravalli County, Montana, that is subject to an easement which the U.S. Forest Service manages. In 2017, Wilkins, Stanton, and their neighbors requested that the Forest Service address problems related to alleged sporadic maintenance and increased use of the easement. In response, the Forest Service indicated that all management decisions were at its sole discretion and not beholden to the landowners. The petitioners filed a lawsuit in U.S. District Court under the Quiet Title Act. The government moved to dismiss for lack of subject matter jurisdiction, arguing the Quiet Title Act’s statute of limitations had passed. The District Court and the 9th Circuit both ruled that the petitioners did not have a case because the act’s statute of limitations was jurisdictional.
- The question presented: “Is the Quiet Title Act’s Statute of Limitations a jurisdictional requirement or a claim-processing rule?”
SCOTUS has not issued any opinions since our previous edition.
Between the 2007 and 2021 terms, SCOTUS issued opinions in 1,128 cases, averaging 75 opinions per year. During that period, the court reversed a lower court decision 805 times (71.4 percent) and affirmed a lower court decision 315 times (27.9 percent).
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
- Dec. 2, 2022: SCOTUS will conference. A conference is a private meeting of the justices to consider cases.
- Dec 5, 2022: SCOTUS will hear arguments in two cases.
- Dec. 6, 2022: SCOTUS will hear arguments in two cases.
- Dec. 7, 2022: SCOTUS will hear arguments in one case.
Federal Court Action
According to the Administrative Office of U.S. Courts, the federal judiciary currently has 88 vacancies, 86 of which are for lifetime Article III judgeships. As of this writing, there are 45 pending nominations.
There are also 30 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active status.
The president has announced 142 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
The Senate Judiciary Committee has reported no new nominees out of committee since our last edition.
Since our previous edition, the U.S. Senate has confirmed one new nominee:
- María Antongiorgi-Jordán, to the U.S. District Court for the District of Puerto Rico, on Nov. 15 by a vote of 55-43.
As of Nov. 28, the Senate had confirmed 85 of President Biden’s judicial nominees—59 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.
Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count 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 this list for updates on federal judicial nominations.
We’ll be back on Dec. 5 with a new edition of Robe & Gavel. Until then, gaveling out!
Myj Saintyl compiled and edited this newsletter, with contributions from Kate Carsella, and Sam Post.