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May sitting

The Supreme Court will hold its May argument sitting on May 4, hearing one case in a one-hour session. In keeping with each sitting of this term, the court will hear arguments remotely and will provide live audio to the public.

Terry v. United States concerns sentencing reductions for crack cocaine offenses. In 2008, Tarahrick Terry was convicted of and pled guilty to possessing cocaine base, also referred to as “crack cocaine,” with the intent to distribute. In 2010, Congress passed the Fair Sentencing Act, modifying the weight limits for drug offenses. In 2018, Congress enacted the First Step Act, which defined “covered offenses” including crack cocaine offenses and set out rules for making relevant sentencing reductions. Terry petitioned the U.S. district court to reduce his sentence. The district court ruled that his offenses were not covered and were not eligible for reduction. On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the district court’s judgment. Terry petitioned the Supreme Court to review the lower court’s findings.

During the 2019-2020 term, the Supreme Court heard 10 hours of oral argument in 13 cases during its May argument session. Those cases had been postponed from the March and April sittings earlier in the term due to public health recommendations in response to COVID-19. According to SCOTUSblog, the last time the Supreme Court held a full May sitting was during the 1968 October Term.

Grants

SCOTUS accepted three cases to its merits docket since our April 26 issue. The court has granted review in a total of 14 cases for the upcoming 2021-2022 term, scheduled to begin on October 4, 2021. 

• New York State Rifle & Pistol Association Inc. v. Corlett concerns a person’s Second Amendment right to carry a firearm for self-defense. The question presented to the court is, “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” The case originated from the U.S. Court of Appeals for the 2nd Circuit.
• Houston Community College System v. Wilson concerns free speech protections and limitations on an elected body’s authority to censure a member for their speech. The question presented to the court asks, “Does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member’s speech?” The case originated from the U.S. Court of Appeals for the 5th Circuit.
• United States v. Zubaydah concerns the state-secrets privilege. The question the court will decide is, “Whether the court of appeals erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities.” Zubaydah came from the U.S. Court of Appeals for the 9th Circuit.

Opinions

SCOTUS issued two opinions since our April 26 issue and has issued 32 opinions to date this term. Seven cases were decided without argument.

April 26

• Alaska v. Wright originated from the U.S. Court of Appeals for the 9th Circuit. In 2009, an Alaska state court convicted Sean Wright on 13 counts of sexually abusing a minor. Wright finished serving his sentence in 2016 and then moved to Tennessee. In Tennessee, Wright did not register as a sex offender, violating federal law. Wright pleaded guilty to one count of failing to register and filed a petition for a writ of habeas corpus with the U.S. District Court for the District of Alaska. Wright argued the state court had acted unconstitutionally in affirming his conviction and sentencing. The district court denied the motion since Wright’s sentence had expired and he was no longer in state custody. On appeal, the U.S. Court of Appeals for the 9th Circuit reversed, holding that Wright could challenge his state conviction even if he’d completed the sentence.

In a unanimous per curiam ruling decided without argument, SCOTUS vacated the 9th Circuit’s ruling and remanded the case for further proceedings consistent with the opinion. Per curiam rulings are unsigned and are delivered by the court as a whole.

April 29

• Niz-Chavez v. Garland originated from the U.S. Court of Appeals for the 6th Circuit and was argued before SCOTUS on November 9, 2020. The case concerned the government’s ability to serve a notice to appear to a non-citizen, and the immigration stop-time rule, where a non-citizen’s accrual of continuous residence ends when that person is served with a notice to appear. The question presented to SCOTUS asked: whether the government must provide the time and place of deportation hearings in a single Notice to Appear document in order to trigger the stop-time rule under 8 U.S.C. § 1229(a), or whether the government can trigger the rule by providing the information in multiple documents.

In a 6-3 ruling, SCOTUS reversed the 6th Circuit’s decision. The court held that a notice to appear sufficient to trigger the stop-time rule is a single document containing all of the information about an individual’s removal hearing specified in §1229(a)(1). Justice Neil Gorsuch delivered the majority opinion of the court. Justice Brett Kavanaugh filed a dissenting opinion, joined by Chief Justice John Roberts and Justice Samuel Alito.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• May 3: SCOTUS will release orders. 
• May 4: SCOTUS will hear arguments in one case.
• May 13: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

During the October 2020 Term, Chief Justice John Roberts filed his first lone dissent in a case since joining the court in 2005. A lone dissent is when one justice votes against the court’s majority ruling. 

By contrast, one of Chief Justice Roberts’ predecessors was known for solitary dissents, earning the nickname “The Lone Ranger”. Who was it?

1. Warren Burger
2. Earl Warren
3. William Rehnquist
4. Antonin Scalia

Choose an answer to find out!

Federal court action

Nominations and confirmations

President Joe Biden (D) nominated three individuals to Article III judgeships on April 29:

• David Estudillo, to the United States District Court for the Western District of Washington
• Tana Lin, to the United States District Court for the Western District of Washington
• Christine O’Hearn, to the United States District Court for the District of New Jersey

On April 28, the Senate Judiciary Committee held hearings for five of Biden’s nominees:

• Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit
• Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit
• Julien Xavier Neals, to the United States District Court for the District of New Jersey
• Zahid Quraishi, to the United States District Court for the District of New Jersey
• Regina Rodriguez, to the United States District Court for the District of Colorado

As of this writing, the U.S. Senate has not yet confirmed any of President Biden’s judicial nominees.

Vacancies

The federal judiciary currently has 78 vacancies, 74 of which are for lifetime Article III judgeships. 

For more information on judicial vacancies during Biden’s term, click here.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, 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.

Spotlight: Presidential nominations to federal courts

Our journey through time continues, gentle reader, to an era of massive change, and not a little bit of turmoil. Yes, the time is 1969 to 1974, and this week’s edition of Bold Justice revisits President Richard Nixon’s (R) judicial nominees.

During his two terms in office, President Nixon successfully nominated 227 judges who were later confirmed and commissioned to the federal bench. One nominee withdrew and the U.S. Senate did not vote on six of his nominees. 

Nixon made four appointments to the Supreme Court: 

• Warren Burger, nominated and joined the court in 1969
• Harry Blackmun, nominated and commissioned in 1970 
• Lewis Powell, nominated and commissioned in 1971
• William Rehnquist, nominated and commissioned in 1971

President Nixon made his first Article III nomination on February 20, 1969, nominating James Battin to the U.S. District Court for the District of Montana. By the end of his first year in office, 26 of Nixon’s nominees had been confirmed. Throughout his tenure as president, Nixon averaged 42.3 judicial appointments per year. By contrast, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year. 

Looking ahead

We’ll be back on May 10 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Brittony Maag, Jace Lington, and Sara Reynolds.