Welcome to the January 20 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

“Life’s most persistent and urgent question is, ‘What are you doing for others?’”

-Martin Luther King, Jr.

Forgive us for stating the obvious, dear reader, but today is a big day–it’s Inauguration Day and Martin Luther King Day. As our nation witnesses another transfer of power, we’ll take a look at the judicial vacancies and appointments during the Biden administration, and look ahead to see what positions await nominations from President Trump. 

We’ve got a lot to cover so let’s gavel in!

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Grants

SCOTUS has accepted five new cases to its merits docket since our Jan. 13 issue. To date, the court has agreed to hear 61 cases for the 2024-2025 term. Two cases were dismissed. Thirteen cases have yet to be scheduled for arguments.

• A.J.T. v. Osseo Area Schools, Independent School District No. 279
• Parrish v. United States
• Mahmoud v. Taylor
• Soto v. United States
• Bowe v. United States

Arguments

The Supreme Court will hear four arguments this week. Click here to read more about SCOTUS’ current term.

Click the links below to learn more about these cases:

Jan. 21

• FDA v. R.J. Reynolds Vapor Co. concerns whether a company may petition a court in a circuit outside of the company’s primary market, if another company located within that court’s jurisdiction signs onto the petition.
  • The questions presented: “Whether a manufacturer may file a petition for review in a circuit (other than the D.C. Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer’s products that is located within that circuit.”
• McLaughlin Chiropractic Associates v. McKesson Corp. concerns whether the Hobbs Act requires a U.S. district court to accept the Federal Communications Commission’s (FCC) legal interpretation of the Telephone Consumer Protection Act.
  • The questions presented: “Whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act.”

Jan. 22

• Barnes v. Felix concerns whether the “moment of the threat” doctrine should be applied to Fourth Amendment excessive force claims.
  • The questions presented: “Whether courts should apply the ‘moment of the threat’ doctrine when evaluating an excessive force claim under the Fourth Amendment.”
    • According to the U.S. Court of Appeals of the Fifth Circuit, the “moment of the threat” doctrine in law enforcement refers to an inquiry that examines whether officers were in danger at the moment of the threat that resulted in the officers’ use of deadly force. This analysis exclusively focuses on the moment just before the alleged excessive force was used.
• Cunningham v. Cornell University concerns whether Cornell University, the Retirement Plan Oversight Committee, and Mary G. Opperman violated the Employee Retirement Income Security Act (ERISA), as claimed by Casey Cunningham.
  • The questions presented: “Whether a plaintiff can state a claim by alleging that a plan fiduciary engaged in a transaction constituting a furnishing of goods, services, or facilities between the plan and a party in interest, as proscribed by 29 U.S.C. § 1106(a)(l)(C), or whether a plaintiff must plead and prove additional elements and facts not contained in the provision’s text.”

In its October 2023-2024 term, SCOTUS heard arguments in 62 cases. Click here to read more about SCOTUS’ previous term.

Opinions

SCOTUS has ruled on three cases since our Jan. 13  edition. The court has issued rulings in seven cases so far this term. Fifty cases are still under deliberation.

Click the links below to read more about the specific cases SCOTUS ruled on since Jan. 13:

Jan. 15

E.M.D. Sales, Inc. v. Carrera was argued before the court on Nov. 5, 2024.

The case: Whether the burden of proof that employers must satisfy to demonstrate the applicability of a Fair Labor Standards Act (FLSA) exemption is preponderance of the evidence or clear and convincing evidence.

• Preponderance of evidence is a standard where the burden of proof is met when a party proves that there is a greater than 50% chance that their claim is true. This standard is usually used in civil trials.
• Clear and convincing evidence is a standard where the burden of proof is met when a party proves that their claim is highly more probable to be true than untrue. This standard is used in civil and criminal trials and is more rigorous than the preponderance of evidence standard.

The outcome: In a 9-0 opinion, the court reversed and remanded the judgment of the U.S. Court of Appeals for the Fourth Circuit, holding that the preponderance of evidence standard should be applied when an employer must show that an employee is exempt from the minimum-wage and overtime-pay provisions of the Fair Labor Standards Act. Justice Brett Kavanaugh delivered the opinion of the court.

• To remand a case means to return it to a lower court for additional proceedings.

Royal Canin U.S.A., Inc. v. Wullschleger was argued before the court on Oct. 7, 2024.

The case: Whether removing all federal law claims from a complaint defeats federal-question subject matter jurisdiction and prevents a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-level claims.

The outcome: In a 9-0 opinion, the court affirmed the judgment of the U.S. Court of Appeals for the Eighth Circuit. The Court held that once Wullschleger amended her complaint to remove all federal law claims, the jurisdiction also changed. In this case, the U.S. District Court for the Western District of Missouri no longer had supplemental jurisdiction over the state claims. The suit became a state case. Justice Elena Kagan delivered the opinion of the court.

Jan. 17

TikTok, Inc. v. Garland was argued before the court on Jan. 10.

The case: Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

The outcome: In a per curiam opinion, the court affirmed the judgment of the U.S. Court of Appeals for the District of Columbia Circuit, holding that the Protecting Americans from Foreign Adversary Controlled Applications Act did not violate the First Amendment.

TikTok was unavailable in the U.S. starting the night of Jan. 18. On Jan. 19, President Donald Trump (R) wrote on Truth Social, “I’m asking companies not to let TikTok stay dark! I will issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect, so that we can make a deal to protect our national security. The order will also confirm that there will be no liability for any company that helped keep TikTok from going dark before my order.”

 TikTok restored service to U.S. users on Jan. 19. 

A look back at the past presidencies

As we say goodbye to the Biden administration, let’s take a look back at some of the vacancy and confirmation statistics of our past presidents and see what lies ahead for President Trump.

As of Jan. 1, 2025, the Senate confirmed 235 of President Biden’s Article III judicial nominees—187 district court judges, 45 appeals court judges, two international trade judges, and one Supreme Court justice—since his inauguration on Jan. 20, 2021. 

Comparison of Article III judicial vacancies over time by president

This chart tracks the number of Article III court vacancies that were present during the first week of January in the first year of each president’s first term.

• Presidents inherited an average of 65 judicial vacancies at the beginning of their first year in office.
• President Trump had the most judicial vacancies at the beginning of his first term with 112.

President Ronald Reagan (R) had the fewest judicial vacancies at the beginning of his first term with 35.

• President Trump will inherit 65% less judicial vacancies (39) in his second term than he did in his first term (112).

Judicial confirmations by president

The following chart tracks judicial appointments at the end of the fourth year of each president’s term. 

• Presidents have made an average of 201 judicial appointments through Dec. 31 of their fourth year in office.
• President Biden made the most appointments through four years with 235. President Reagan made the fewest through four years with 166.

Blue slips 

A blue slip is a piece of paper a home state senator returns to the chair of the Senate Judiciary Committee to show his or her approval of a federal judicial nominee. The Constitution does not mandate the use of blue slips. Under traditional usage of blue slips, U.S. senators have the power to prevent a federal judicial nominee from receiving a hearing and subsequently being confirmed. Senators are not required to state a reason for their blue slips.

The following table tracks judicial appointments and blue slips from 2017 until the present. Nominees under the Trump administration received the most blue slips with 21 during the 116th Congress.

Vacancies

As of Jan. 20, the federal judiciary has 40 vacancies, 40 of which are for lifetime Article III judgeships. As of publication, there were no pending nominations.

According to the Administrative Office of U.S. Courts, there were five 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.

Looking ahead

We’ll be back on Feb. 10 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

Myj Saintyl compiled and edited this newsletter, with contributions from Sam Post and Ellie Mikus.