Welcome to the May 9 edition of Robe & Gavel, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

Fear not, dear reader, that the end of oral arguments at the high court means no more SCOTUS action until next term. On the contrary–the justices are busy conferencing, granting new cases, and issuing opinions. So don’t retire your gavel—or your reading glasses—just yet. Our newsletter is here to keep you in the loop. This edition also features a rundown of our latest judicial vacancy data, so take a seat, grab those glasses, and gavel in to our May 9 edition.

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Grants

SCOTUS has accepted three new cases since our last edition. To date, the court has agreed to hear 14 cases during its 2022-2023 term. The court has not yet scheduled any of the cases for argument.

May 2

• Health and Hospital Corporation of Marion County, Indiana v. Talevski concerns a private plaintiff’s ability to sue an entity for allegedly violating laws Congress passed using its spending clause power in Article I, Section 8 of the Constitution. It came to the court from the U.S. Court of Appeals for the 7th Circuit. The petitioners presented two questions to the court: “1. Whether, in light of compelling historical evidence to the contrary, the Court should reexamine its holding that Spending Clause legislation gives rise to privately enforceable rights under Section 1983. 2. Whether, assuming Spending Clause statutes ever give rise to private rights enforceable via Section 1983, FNHRA’s transfer and medication rules do so.”
• Bartenwerfer v. Buckley concerns a bankruptcy debtor’s liability for another individual’s fraud, even if the debtor was unaware of the fraud. The question presented to the court asks: “May an individual be subject to liability for the fraud of another that is barred from discharge in bankruptcy under 11 U.S.C. (the “Bankruptcy Code”) § 523(a)(2)(A), by imputation, without any act, omission, intent or knowledge of her own?” The case originated from the U.S. Court of Appeals for the 9th Circuit.
• Helix Energy Solutions Group, Inc. v. Hewitt concerns the Fair Labor Standards Act (FLSA) and 29 CFR § 541.601, which provides that certain high-earning employees are not entitled to overtime pay under the FLSA. The question the court will decide is: “Whether a supervisor making over $200,000 each year is entitled to overtime pay because the standalone regulatory exemption set forth in 29 C.F.R. §541.601 remains subject to the detailed requirements of 29 C.F.R. §541.604 when determining whether highly compensated supervisors are exempt from the FLSA’s overtime-pay requirements.” The case came from the U.S. Court of Appeals for the 5th Circuit.

Arguments

The Supreme Court has finished hearing arguments for its 2021-2022 term. During the term, the court accepted 66 cases for oral argument. It heard 61 cases after four cases were dismissed and one case was removed from the argument calendar. The court’s 2022-2023 term is scheduled to begin on October 3, 2022.

Opinions

SCOTUS has issued three rulings since our April 25 edition. The court has decided 27 cases so far this term, three of which were decided without argument. 

April 28

• In Cummings v. Premier Rehab Keller, P.L.L.C., the court upheld the U.S. Court of Appeals for the 5th Circuit’s decision in an 6-3 ruling. SCOTUS found that plaintiffs who bring private lawsuits under the Rehabilitation Act of 1973 and the Affordable Care Act cannot recover compensatory damages for emotional distress.

Chief Justice John Roberts wrote the court’s majority opinion. Justice Stephen Breyer filed a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan.

• In LeDure v. Union Pacific Railroad Company, an evenly divided court upheld the U.S. Court of Appeals for the 7th Circuit’s holding in a 4-4 per curiam opinion. A per curiam opinion is unsigned and issued by the court as a whole. The 7th Circuit upheld the trial court’s decision that Bradley LeDure, who filed a negligence claim against Union Pacific Railroad Company, could not recover damages under the Locomotive Inspection Act because the stationary locomotive was not legally in use at the time LeDure was injured while preparing the locomotive to travel.

Justice Amy Coney Barrett recused herself because as a judge on the 7th Circuit she was part of the panel who decided the case. 

May 2

• In Shurtleff v. City of Boston, the court reversed the U.S. Court of Appeals for the 1st Circuit’s ruling in a 9-0 decision. The court found that the city of Boston violated the First Amendment when it denied a Christian group’s application to fly a Christian flag in front of city hall. Writing for the majority, Justice Breyer stated that, “[O]n balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint ‘abridg[ed]’ their ‘freedom of speech.’ “

Justice Bryer delivered the majority opinion. Justice Brett Kavanaugh filed a concurring opinion, and Justices Samuel Alito and Neil Gorsuch wrote opinions concurring in the judgment.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• May 12: SCOTUS will conference. A conference is a private meeting of the justices. 
• May 16: SCOTUS will issue orders.
• May 19: SCOTUS will conference.
• May 23: SCOTUS will issue orders.
• May 26: SCOTUS will conference.
• May 31: SCOTUS will issue orders.

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. 

The April report covers nominations, confirmations, and vacancies from April 2 through May 1. 

Highlights

• Vacancies: There were four new judicial vacancies in April. There were 75 vacancies out of 870 active Article III judicial positions. Including the U.S. Court of Federal Claims and the U.S. territorial courts, 77 of 890 active federal judicial positions were vacant.  
• Nominations: There were 10 new nominations. 
• Confirmations: There were two new confirmations.

Vacancy count for May 1, 2022

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 U.S. territorial courts are named as district courts, they are not Article III courts. They are established by Article IV of the U.S. Constitution. Click here for more information.

New vacancies

Four judges left active status since the previous report, creating Article III life-term judicial vacancies. The president nominates individuals to fill Article III judicial positions. Nominations are subject to U.S. Senate confirmation.

• Judge David Nuffer assumed senior status on the U.S. District Court for the District of Utah
• Judge Noel Hillman assumed senior status on the U.S. District Court for the District of New Jersey
• Judge John Mendez assumed senior status on the U.S. District Court for the Eastern District of California
• Judge Denise Hood assumed senior status on the U.S. District Court for the Eastern District of Michigan

The following chart tracks the number of vacancies in the United States Courts of Appeals from the inauguration of President Joe Biden (D) 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 May 1, 2022.

New nominations

President Joe Biden (D) announced 10 new nominations during the month of April.

• John Z. Lee, to the U.S. Court of Appeals for the 7th Circuit
• Sal Mendoza, Jr., to the U.S. Court of Appeals for the 9th Circuit
• Sarah A.L. Merriam, to the U.S. Court of Appeals for the 2nd Circuit
• Lara Montecalvo, to the U.S. Court of Appeals for the 1st Circuit
• Elizabeth Hanes, to the U.S. District Court for the Eastern District of Virginia
• Stephen Locher, to the U.S. District Court for the Southern District of Iowa
• Nancy Maldonado, to the U.S. District Court for the Northern District of Illinois
• Anne Nardacci, to the U.S. District Court for the Northern District of New York
• Ana Reyes, to the U.S. District Court for the District of Columbia
• Gregory Williams, to the U.S. District Court for the District of Delaware

Biden has announced 93 Article III judicial nominations since taking office on Jan. 20, 2021. For more information on the president’s judicial nominees, click here.

New confirmations

The U.S. Senate confirmed two nominees since our previous report. 

• Ketanji Brown Jackson, to the U.S. Supreme Court
• Sherilyn P. Garnett, to the U.S. District Court for the Central District of California

As of May 1, 2022, the Senate had confirmed 60 of President Biden’s judicial nominees—44 district court judges, 15 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 44 judges through May 1 of their second year in office.
• Biden made the most appointments through May 1 of his second year with 60, followed by President Ronald Reagan (R) with 58. President Barack Obama (D) made the fewest with 21.
• President Donald Trump (R) made the most appointments through four years with 234. President Reagan made the fewest through four years with 166.

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.

Looking ahead

We’ll be back on June 7 with a new edition of Robe & Gavel. Until then, gaveling out! 

Contributions

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