Where does the time go? We are already into our second week of SCOTUS arguments, dear readers, and there is a ton to cover. So let’s gavel in!
We #SCOTUS and you can, too!
SCOTUS has accepted 12 new cases to its merits docket since our Oct. 2 issue. To date, the court has agreed to hear 35 cases for the 2023-2024 term. SCOTUS dismissed one case after it was accepted.
- Corner Post, Inc. v. Board of Governors of the Federal Reserve System
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Paxton
- Smith v. Arizona
- Devillier v. Texas
- Bissonnette v. LePage Bakeries Park St., LLC
- State Sheetz v. County of El Dorado, California
- Warner Chappell Music v. Nealy
- Macquarie Infrastructure Corp. v. Moab Partners, L.P.
- Office of the U.S. Trustee v. John Q. Hammons Fall 2006, LLC
- Federal Bureau of Investigation v. Fikre
- McIntosh v. U.S.
The Supreme Court will hear arguments in three cases this week. Click here to read more about SCOTUS’ current term.
Click the links below to learn more about these cases:
- Murray v. UBS Securities, LLC concerns the Sarbanes-Oxley Act of 2002.
- The questions presented: “[M]ust a whistleblower prove his employer acted with a ‘retaliatory intent’ as part of his case in chief, or is the lack of ‘retaliatory intent’ part of the affirmative defense on which the employer bears the burden of proof?”
- Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC concerns federal admiralty law and choice of law clauses in contracts relating to sea vessels.
- The questions presented: “Under federal admiralty law, can a choice of law clause in a maritime contract be rendered unenforceable if enforcement is contrary to the ‘strong public policy’ of the state whose law is displaced?”
- Alexander v. South Carolina State Conference of the NAACP concerns a challenge to the congressional redistricting plan the South Carolina Legislature approved after the 2020 census.
- The questions presented:
“1. Did the district court err when it failed to apply the presumption of good faith and to holistically analyze District 1 and the General Assembly’s intent?”
2. Did the district court err in failing to enforce the alternative-map requirement m [sic] this circumstantial case?”
3. Did the district court err when it failed to disentangle race from politics?”
4. Did the district court err in finding racial predominance when it never analyzed District l’s compliance with traditional districting principles?”
5. Did the district court clearly err in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data?”
6. Did the district court err in upholding the intentional discrimination claim when it never even considered whether-let alone found that-District 1 has a discriminatory effect?”
Upcoming SCOTUS dates
Here are the court’s upcoming dates of interest:
- Oct. 10: SCOTUS will hear arguments in two cases.
- Oct. 11: SCOTUS will hear arguments in one case.
- Oct. 13: 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. This month’s edition includes nominations, confirmations, and vacancies from Sept. 2, through Oct. 1.
- Vacancies: There have been two new judicial vacancies since the September 2023 report. There are 69 vacancies out of 870 active Article III judicial positions in courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 70 of 890 active federal judicial positions are vacant.
- Nominations: There have been seven new nominations since the September 2023 report.
- Confirmations: There were five new confirmations since the September 2023 report.
Vacancy count for Oct. 1, 2023
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 since the previous report, creating Article III life-term judicial vacancies. The president nominates individuals to fill these vacancies. Nominations are subject to U.S. Senate confirmation.
- Judge John Michael Vazquez resigned from the United States District Court for the District of New Jersey.
- Judge Gonzalo Curiel assumed senior status on the United States District Court for the Southern District of California.
The following chart tracks the number of vacancies in the United States Courts of Appeals from President Joe Biden’s (D) inauguration 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 Oct 1.
On Sept. 6, the president announced his intent to nominate the following individuals:
- Mustafa Kasubhai, to the U.S. District Court for the District of Oregon
- Shanlyn A. S. Park, to the U.S. District Court for the District of Hawaii
- Jamel Semper, to the U.S. District Court for the District of New Jersey
- Kirk Sherriff, to the U.S. District Court for the Eastern District of California
On Oct. 4, the president nominated the following individuals:
- Seth Aframe, to the U.S. Court of Appeals for the First Circuit
- Edward Kiel, to the U.S. District Court for the District of New Jersey
- Sarah F. Russell, to the U.S. District Court for the District of Connecticut
The president has announced 186 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.
As of Oct. 6, the Senate has confirmed 145 of President Biden’s Article III judicial nominees—108 district court judges, 36 appeals court judges, and one Supreme Court justice—since his inauguration on Jan. 20, 2021
- Jeffrey Cummings, to the U.S. Court for the Northern District of Illinois
- Vernon D. Oliver, to the U.S. District Court for the District of Connecticut
- Rita Lin, to the U.S. District Court for the Northern District of California
- Susan DeClercq, to the U.S. District Court for the Eastern District of Michigan
- Brendan Hurson, to the U.S. District Court for the District of Maryland
Comparison of Article III judicial appointments over time by president (1981-Present)
- Presidents have made an average of 133.7 judicial appointments through Oct. 1 of their third year in office.
- President Bill Clinton (D) made the most appointments through Oct. 1 of his third year with 166. President Barack Obama (D) made the fewest with 98.
- President Donald Trump (R) made the most appointments through four years with 234. President Ronald Reagan (R) made the fewest through four years with 166.
- President Ronald Reagan (R) made the most appointments through one year in office with 41. President Barack Obama (D) made the fewest with 13.
- President Bill Clinton (D) made the most appointments through two years with 128. President Barack Obama (D) made the fewest with 62
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 Oct. 30 with a new edition of Robe & Gavel. Until then, gaveling out!
Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post.