We’ve got a jam-packed week ahead of us as we near the end of the argument calendar for this term. So grab a seat, dear readers, and let’s gavel on in!
We #SCOTUS and you can, too!
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
- April 17, 2023: SCOTUS will hear arguments in two cases.
- April 18, 2023: SCOTUS will hear arguments in two cases.
- April 19, 2023: SCOTUS will hear arguments in one case.
- April 21, 2023: SCOTUS will conference. A conference is a private meeting of the justices.
- SCOTUS has not accepted any new cases to its merits docket since our April 10 edition.
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:
April 17, 2023
- Pugin v. Garland (consolidated with Garland v. Cordero-Garcia) concerns the Immigration and Nationality Act, specifically, 8 U.S.C. §§ 1101 and 1227.
- The questions presented for Pugin v. Garland: “1. Whether a state offense-like petitioner’s accessory-after-the-fact offense here-that does not involve interference with an existing official proceeding or investigation may constitute an ‘offense relating to obstruction of justice.’
“2. Whether, assuming that the phrase ‘offense relating to obstruction of justice’ is deemed ambiguous, courts should afford Chevron deference to the Board of Immigration Appeals’ interpretation of that phrase.”
- The questions presented for Garland v. Cordero-Garcia: “To qualify as ‘an offense relating to obstruction of justice,’ 8 U.S.C. § 1101(a)(43)(S), must a predicate offense require a nexus with a pending or ongoing investigation or judicial proceeding?”
- Slack Technologies v. Pirani concerns Sections 11 and 12(a)(2) of the Securities Act of 1933.
- The questions presented: “Whether Sections 11 and 12(a)(2) of the Securities Act of 1933 require plaintiffs to plead and prove that they bought shares registered under the registration statement they claim is misleading.”
April 18, 2023
- Groff v. DeJoy concerns Title VII of the Civil Rights Act of 1964 and an employer’s religious accommodations.
- The questions presented: “1. Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title. VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 2. Whether an employer may demonstrate ‘undue hardship on the conduct of the employer’s business’ under Title VII merely by showing that the requested accommodation burdens the employee’s co-workers rather than the business itself.”
- U.S. ex rel. Schutte v. SuperValu Inc. (Consolidated with U.S. ex rel. Proctor v. Safeway, Inc.) concerns the False Claims Act.
- The questions presented: “Whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it ‘knowingly’ violated the False Claims Act.”
April 19, 2023
- Counterman v. Colorado concerns the First Amendment. Specifically, how to determine whether death threats made on a social media platform are true threats.
- The questions presented: “Whether, to establish that a statement is a ‘true threat’ unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective ‘reasonable person’ would regard the statement as a threat of violence.”
In its October 2022 term, SCOTUS has agreed to hear 60 cases. One case was dismissed. The court scheduled 59 of the cases for argument. One case was removed from the argument calendar.
SCOTUS has ruled on one case since our April 10 edition. The court has issued rulings in 10 cases so far this term. Fifty cases are still under deliberation.
Click the links below to read more about the specific case SCOTUS ruled on since April 10:
April 14, 2023
Axon Enterprise, Inc. v. Federal Trade Commission was argued before the court on Nov 7, 2022.
The case: Axon, a body camera company, acquired a competitor. The Federal Trade Commission (FTC) ordered Axon to undo the acquisition on antitrust grounds. Axon sued, arguing that the FTC’s administrative proceeding violated due process rights, that the structure of the FTC’s double for-cause removal protections afforded to its administrative law judges (meaning that there are restrictions on the for-cause removal process for the judges) violates Article II of the U.S. Constitution, and that the acquisition did not violate antitrust law. The district court dismissed the case, and the U.S. Court of Appeals for the Ninth Circuit affirmed the decision.
In a unanimous decision, the Supreme Court reversed the decision of the U.S. District Court of the Ninth Circuit, affirmed the decision of the U.S. District Court of the Ninth Circuit, and remanded the cases for further court action.
- To remand means to return a case or claim to a lower court for additional proceedings.
The Supreme Court concluded that a district court can review challenges to the constitutionality of Securities and Exchange Commission and Federal Trade Commission decisions. Justice Elena Kagan wrote the majority opinion and Justice Clarence Thomas wrote a concurring opinion.
Federal court action
President Joe Biden has announced two new Article III nominees since our April 10 edition.
- Ana de Alba, to the U.S. Court of Appeals for the Ninth Circuit
- Irma Carrillo Ramirez, to the U.S. Court of Appeals for the Fifth Circuit
- The Senate Judiciary Committee has reported no new nominees out of committee since our April 10 edition.
The U.S. Senate has confirmed no new nominees since our previous edition.
As of April 1, 2023, the Senate had confirmed 119 of President Biden’s Article III judicial nominees—87 district court judges, 31 appeals court judges, and one Supreme Court justice—since his inauguration on January 20, 2021. To review a complete list of Biden’s confirmed nominees, click here.
The federal judiciary currently has 77 vacancies, 75 of which are for lifetime Article III judgeships. As of publication, there were 35 pending nominations.
According to the Administrative Office of U.S. Courts, there were 24 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.
For more information on judicial vacancies during President Biden’s term, click here.
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 our list for updates on federal judicial nominations.
We’ll be back on April 24 with a new edition of Robe & Gavel. Until then, gaveling out!
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.