Author

Kate Carsella

Kate Carsella is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

U.S. Supreme Court grants review in 14 cases

On the evening of Jan. 8, 2021, the Supreme Court of the United States (SCOTUS) granted review in 14 cases for a total of 12 hours of oral argument during its 2020-2021 term. The cases have not yet been scheduled for argument.

The following is a list of the cases granted review by SCOTUS and the lower courts from which they originated:

U.S. Court of Appeals for the 3rd Circuit

  • Sanchez v. Wolf
  • Mahanoy Area School District v. B.L.

U.S. Court of Appeals for the 4th Circuit

  • United States v. Gary

U.S. Court of Appeals for the 5th Circuit

  • City of San Antonio, Texas v. Hotels.com, L.P.

U.S. Court of Appeals for the 9th Circuit

  • United States v. Palomar-Santiago
  • Americans for Prosperity v. Becerra (Consolidated with Thomas More Law Center v. Becerra)

U.S. Court of Appeals for the 10th Circuit

  • HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association

 U.S. Court of Appeals for the 11th Circuit

  • Greer v. United States
  • Terry v. United States

U.S. Court of Appeals for the District of Columbia Circuit

  • Mnuchin v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation)
  • Guam v. United States

U.S. Court of Appeals for the Federal Circuit

  • Minerva Surgical Inc. v. Hologic Inc.

The Supreme Court began hearing cases for the term on Oct. 5, 2020. The court will hear a total of five hours of oral argument in six cases during its January sitting.

As of Jan. 11, the court had agreed to hear arguments in 60 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. 

Additional reading:



SCOTUS announces oral arguments to be conducted via teleconference for January sitting

On Jan. 5, 2021, the U.S. Supreme Court announced that it would hear oral arguments via teleconference during its January sitting, following the same format that was used during its October, November, and December sittings.

Under this format, all relevant counsel are called the morning of the case’s argument day and are briefed with instructions. At the time of argument, the justices enter the main conference call for argument. Chief Justice Roberts will call the first case and will prompt counsel to present their arguments. The chief justice will conduct initial questioning. Once complete, the associate justices are able to ask questions in turns in order of seniority.

The following is a list of the current Supreme Court justices in order of seniority:

  • Chief Justice John Roberts – Appointed by President George W. Bush (R) in 2005
  • Associate Justice Clarence Thomas – Appointed by President George H.W. Bush (R) in 1991
  • Associate Justice Stephen Breyer – Appointed by President Bill Clinton (D) in 1994
  • Associate Justice Samuel Alito – Appointed by President George W. Bush (R) in 2006
  • Associate Justice Sonia Sotomayor – Appointed by President Barack Obama (D) in 2009
  • Associate Justice Elena Kagan – Appointed by President Barack Obama (D) in 2010
  • Associate Justice Neil Gorsuch – Appointed by President Donald Trump (R) in 2017
  • Associate Justice Brett Kavanaugh – Appointed by President Donald Trump (R) in 2018
  • Associate Justice Amy Coney Barrett – Appointed by President Donald Trump (R) in 2020

The court also announced that the oral arguments will be provided to the public via live audio stream. The audio files and argument transcripts for cases will be posted on the Court’s website following oral argument each day.

The Supreme Court began hearing cases for the term on Oct. 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year.

As of Jan. 8, 2021, the court had agreed to hear 60 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

Additional reading:



Bold Justice: SCOTUS begins January sitting

Bold Justice by Ballotpedia

Welcome to the January 11 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

New year, new court business: SCOTUS ushers in its 2021 sittings to hear arguments and Congress has begun its 117th session. With all of these updates, Ballotpedia’s got you covered. Click here to subscribe to Ballotpedia’s Daily and Weekly Transition Trackers.

Stay up to date on the latest news by following us on Twitter or subscribing to the Daily Brew.

We #SCOTUS, so you don’t have to

The Supreme Court will hear three hours of arguments the week of January 11 via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 48 cases during its 2020-2021 term. Twelve of those were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

In its October 2019 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases before SCOTUS during its January sitting.

January 11

  • Albence v. Guzman Chavez concerns the Immigration and Nationality Act of 1952 and the federal government’s statutory authority to detain immigrants who are seeking to overturn a deportation order issued after a reinstated removal order. 
  • A reinstated removal order is when an immigrant enters the United States without lawful permission, is deported, and then re-enters the United States without lawful permission, the original deportation order, known as a removal order, is reinstated.
  • The case originated in a dispute over whether the respondents, a group of immigrants detained by the U.S. government pending deportation proceedings, could seek release in bond hearings before immigration judges. The government argued they could not seek release, because 8 U.S.C. 1231 subjected the immigrants to mandatory detention. The immigrants argued that 8 U.S.C. 1226 allowed them to seek release via bond hearings. The U.S. District Court held the respondents were detained under 8 U.S.C. 1226 and ordered the government to provide bond hearings. On appeal, the U.S. Court of Appeals for the 4th Circuit upheld the district court’s ruling. Matthew Albence, the acting director of U.S. Immigration and Customs Enforcement (ICE), petitioned the Supreme Court for review.
  • The issue: “Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. 1231, or instead by 8 U.S.C. 1226.”

January 12

  • Uzuegbunam v. Preczewski concerns mootness of nominal damages claims. 
  • Nominal damages claims are when a judge or jury rules in favor of one party to a lawsuit but finds that the damages incurred were of no real harm and awards a small, or nominal, amount of money.
  • Mootness is when further legal proceedings will have no effect on the matter at issue.
  • A student at Georgia Gwinnett College, Chike Uzuegbunam, was distributing religious literature on campus. Uzuegbunam was stopped by campus police and informed he was subject to disciplinary action if he continued handing out information under the school’s code of conduct. Uzuegbunam and fellow student James Bradford sued multiple school officials in U.S. district court, challenging the school’s policies constitutionality and seeking nominal damages. While the case was pending, the school revised its policies and Uzuegbunam graduated. Counsel for the school officials moved for dismissal, claiming the appellants’ arguments were now moot because of the policy changes. The district court dismissed the case. On appeal, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s ruling. Uzuegbunam and Bradford petitioned the Supreme Court for review, citing a circuit split, or differing rulings from different federal circuit courts, on the subject of mootness related to nominal damages claims.
  • The issue: Whether a government’s post-filing change of an unconstitutional policy moots nominal damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.

January 13

  • AMG Capital Management, LLC v. Federal Trade Commission concerns the Federal Trade Commission Act and whether it authorizes the Federal Trade Commission to demand restitution.
  • In 2012, the Federal Trade Commission (“FTC”) sued Scott Tucker and his credit monitoring companies in the U.S. District Court for the District of Nevada for violating consumer-protection statutes in the Federal Trade Commission Act. The court granted the FTC’s motion for summary judgment and ordered the defendant to pay restitution. The U.S. Court of Appeals for the 9th Circuit affirmed the District of Nevada’s ruling. AMG Capital Management, LLC petitioned the Supreme Court for review.
  • The issue: Whether §13(b) of the Federal Trade Commission Act, by authorizing the FTC to seek preliminary and permanent injunctions where applicable, also authorizes the FTC to demand relief in the form of money including restitution, and if it does, what the scope of the limits or requirements for the equitable monetary relief would be.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • January 11: 
    • SCOTUS will release orders. 
    • SCOTUS will hear arguments in one case.
  • January 12: SCOTUS will hear arguments in one case.
  • January 13: SCOTUS will hear arguments in one case.
  • January 15: SCOTUS will conference. A conference is a private meeting of the justices.
  • January 19: 
    • SCOTUS will release orders. 
    • SCOTUS will hear arguments in three cases.

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 December 1 to December 31.

Highlights

  • Vacancies: There have been no new judicial vacancies since the November 2020 report. As of December 31, 46 out of 870 (5.3%) active Article III judicial positions on the courts covered in this report were vacant.

    Including the United States Court of Federal Claims and the United States territorial courts, 49 of 890 active federal judicial positions are vacant.
  • Nominations: There were no new nominations since the November 2020 report.
  • Confirmations: There have been seven new confirmations since the November 2020 report.

Vacancy count for December 31, 2020

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on 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.

New vacancies

No judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. A presidential nomination is required to fill an Article III vacancy. Nominations are subject to the advice and consent of the U.S. Senate.

The chart below shows the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017, to December 31, 2020.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of December 31.

New nominations

President Trump has not announced any new nominations since the November 2020 report. 

The president has announced 274 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between December 1 and December 31, 2020, the Senate confirmed seven of the president’s nominees to Article III courts.

Between January 2017 and December 31, 2020, the Senate confirmed 234 of President Trump’s judicial nominees—174 district court judges, 54 appeals court judges, three Court of International Trade judges, and three Supreme Court justices.

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, check out our list of individuals the president has nominated.

Justice on center stage

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Neil Gorsuch

Gorsuch has been an associate justice since April 10, 2017. President Donald Trump (R) nominated Gorsuch on January 31, 2017, to succeed Antonin Scalia. The U.S. Senate voted to confirm Gorsuch 54-45 on April 7, 2017.

Image of Elena Kagan
Before joining the U.S. Supreme Court, Gorsuch was a judge with the U.S. Court of Appeals for the 10th Circuit (2006-2017). Before that, he was a principal deputy, associate attorney general with the U.S. Department of Justice (2005-2006), and a partner and associate with  a private practice, Kellogg, Huber, Hansen, Todd, Evans, and Figel (1995-2005). Click here to learn more about Gorsuch’s professional career.

Gorsuch was born on August 29, 1967, in Denver, Colorado. He earned his B.A. from Columbia University in 1988, his J.D. from Harvard Law School in 1991, and his D.Phil. from the University of Oxford in 2004.

In the 2019-2020 term, Gorsuch wrote the following opinions:

Looking ahead

We’ll be back on January 18 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

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



U.S. Senate returns 37 federal judicial nominations to president

On January 3, 2021, the United States Senate returned the nominations of 37 individuals to the president at the sine die adjournment of the 116th Congress. On the same day, President Donald Trump (R) resubmitted 17 judicial nominations to the Senate. 

The list of returned nominations included 22 nominees for the U.S. district courts, three nominees for the Court of Federal Claims, one for the Court of International Trade, one for the United States Tax Court, two for the District of Columbia Court of Appeals, one for the District Court of Guam, and seven for the Superior Court of the District of Columbia.

At the adjournment of the 116th Congress on January 3, seven of the nominees were awaiting a full Senate vote, one was awaiting a vote in the Senate Judiciary Committee, and 29 were awaiting a committee hearing.

Any renominations are referred to the Senate Judiciary Committee. The committee may choose not to hold additional hearings for nominees who already received a hearing in the previous Congress. As such, the renominations are expected to continue in the confirmation process where they left off at the end of the 116th Congress.

The U.S. Senate has confirmed 234 of President Trump’s Article III judicial nominees—174 district court judges, 54 appeals court judges, three Supreme Court justices, and three international trade judges—since January 2017.



Ballotpedia releases federal judicial vacancy count for December

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from December 1, 2020, to December 31, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There have been no new judicial vacancies since the November 2020 report. There are 46 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 49 of 890 active federal judicial positions are vacant.

Nominations: There were no new nominations since the November 2020 report.

Confirmations: There have been seven new confirmations since the November 2020 report.

New vacancies

There were 46 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 5.3.

  • The nine-member U.S. Supreme Court does not have any vacancies.
  • Two (1.1%) of the 179 U.S. Appeals Court positions are vacant.
  • 43 (6.4%) of the 673 U.S. District Court positions are vacant.*
  • One (11.1%) of the nine U.S. Court of International Trade positions is vacant.

*District court count does not include territorial courts.

No judges left active status, which would create Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. Court of Appeals vacancies

The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) to the date indicated on the chart.

The following maps show the number of vacancies on the United States Court of Appeals at Trump’s inauguration and as of December 31, 2020.

New nominations

Trump has not announced any new nominations since the November 2020 report.

New confirmations

Since December 1, 2020, the United States Senate has confirmed seven of Trump’s nominees to Article III seats. 

  • Taylor McNeel, confirmed to the United States District Court for the Southern District of Mississippi.
  • J. Philip Calabrese, confirmed to the United States District Court for the Northern District of Ohio.
  • Thomas Kirsch, confirmed to the United States Court of Appeals for the 7th Circuit.
  • Katherine Crytzer, confirmed to the United States District Court for the Eastern District of Tennessee.
  • Joseph Dawson, confirmed to the United States District Court for the District of South Carolina.
  • Charles Atchley, confirmed to the United States District Court for the Eastern District of Tennessee.
  • Fernando Aenlle-Rocha, confirmed to the United States District Court for the Central District of California.

As of January 4, 2021, the Senate has confirmed 234 of President Trump’s Article III judicial nominees—174 district court judges, 54 appeals court judges, three Court of International Trade judges, and three Supreme Court justices—since January 2017.

Additional reading:



SCOTUS accepts cases concerning federal antitrust laws, NCAA compensation rules

On December 16, 2020, the Supreme Court of the United States granted review in the consolidated cases National Collegiate Athletic Association (“NCAA”) v. Alston and American Athletic Conference v. Alston for a total of one hour of oral argument during its 2020-2021 October Term. The cases originated from the U.S. Court of Appeals for the 9th Circuit and have not yet been scheduled for argument before SCOTUS.

The cases: In 2014, a class of Division 1 (“D1″) student-athletes, collectively referred to as “Alston” and as “student-athletes,” filed several antitrust complaints against the National Collegiate Athletic Association (“NCAA”) and 11 D1 conferences in federal district court, challenging the NCAA’s compensation rules for student-athletes. The NCAA claimed that the challenge was settled in a previous case, O’Bannon v. NCAA. The Northern District of California ordered the NCAA make its compensation rules less restrictive for student-athletes and ruled that the compensation rules in their iteration at that time were unlawful restraints of trade under the Sherman Antitrust Act (“Sherman Act”). On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed the district court’s conclusion, order, and its assessment of liability. The NCAA appealed to the Supreme Court.

The issue (NCAA v. Alston): Whether the 9th Circuit’s holding that the NCAA eligibility rules regarding student-athletes’ compensation violate federal antitrust law was in error.

The issue (American Athletic Conference v. Alston): “Whether the Sherman Act authorizes a court to subject the product-defining rules of a joint venture to full Rule of Reason review, and to hold those rules unlawful if, in the court’s view, they are not the least restrictive means that could have been used to accomplish their procompetitive goal.”

The outcome: The appeals are pending adjudication before the U.S. Supreme Court.

The Supreme Court began hearing cases for the term on October 5, 2020. As of December 21, the court had agreed to hear 49 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. The court had issued opinions in 10 cases this term. Four cases were decided without argument.

Additional reading:



SCOTUS issues ruling in case concerning Delaware’s method of judicial selection

On December 11, 2020, the Supreme Court of the United States issued a unanimous ruling in the case Carney v. Adams. The case originated from the U.S. Court of Appeals for the 3rd Circuit and concerned judicial selection in Delaware. The case was argued during the court’s October Term for 2020-2021 on October 5, 2020.

The case: As of December 2019, when Delaware Governor John Carney Jr. (D) filed a petition before the U.S. Supreme Court, Article IV, Section 3 of the Delaware Constitution required that no more than the bare majority of judges on a given Delaware court could be of the same political party. 

James Adams, a retired lawyer, sued Gov. Carney in federal district court. Adams argued Article IV, Section 3 violated the First Amendment. In response, Carney argued that Adams did not have the legal right, or standing, to file a lawsuit. A federal magistrate judge ruled the state constitution’s provision was unconstitutional. On appeal, the U.S. Court of Appeals for the 3rd Circuit affirmed in part and reversed in part the federal district court’s ruling. 

Gov. Carney, acting in his official capacity, filed a petition with the U.S. Supreme Court, arguing the 3rd Circuit’s decision conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit.

The issues: 

(1) Does the First Amendment invalidate the Delaware Constitution’s “bare majority” requirement? 

(2) Was the 3rd Circuit wrong to hold that part of the Delaware Constitution’s “bare majority” requirement is not severable from the rest of the requirement? 

(3) Does the respondent have standing?

The outcome: The court vacated the 3rd Circuit’s decision in an 8-0 ruling, holding that James Adams, the respondent, did not have standing to sue the governor of Delaware. Justice Stephen Breyer wrote the opinion and Justice Sonia Sotomayor filed a concurring opinion. Justice Amy Coney Barrett did not take part in the case’s consideration or decision.

As of December 14, 2020, the court had issued opinions in nine cases this term. Four cases were decided without argument.

Additional reading:



Two nominees confirmed to federal judgeships

The week of November 30, 2020, two federal judicial nominees were confirmed to Article I judgeships by the U.S. Senate. They will join their respective courts upon receiving their judicial commission and taking their judicial oaths.

U.S. Court of Federal Claims

On December 2, 2020, Kathryn Davis was confirmed to the court by the U.S. Senate by a vote of 51-45. She was nominated to the court by President Donald Trump (R) on November 19, 2019. Davis was nominated to replace Judge Charles F. Lettow, who assumed senior status on July 13, 2018. 

The United States Court of Federal Claims is an Article I tribunal, a federal court organized under Article I of the U.S. Constitution.

After Davis receives her judicial commission, the U.S. Court of Federal Claims will have:

  • Six vacancies
  • Seven Republican-appointed judges and three Democrat-appointed judges.

In addition to Davis, President Trump has appointed 13 judges to the court. President Barack Obama (D) appointed three judges to the court.

U.S. Court of Appeals for the Armed Forces

On December 3, 2020, Liam Hardy was confirmed to the court by the U.S. Senate by a vote of 59-34. He was nominated to the court by President Donald Trump (R) on May 21, 2020. Hardy was nominated to replace Judge Margaret Ryan, whose term expired on July 31, 2020.

The United States Court of Appeals for the Armed Forces is an Article I federal court that exercises worldwide appellate jurisdiction over members of the U.S. Armed Forces on active duty and other persons subject to the Uniform Code of Military Justice.

After Hardy receives his judicial commission, the U.S. Court of Appeals for the Armed Forces will have:

  • No vacancies
  • Three Republican-appointed judges and two Democrat-appointed judges.

In addition to Hardy, President Trump has appointed one judge to the court. President Obama appointed two judges to the court, and President George W. Bush appointed one judge to the court.

Since taking office, President Trump has nominated 274 individuals to federal judgeships, 229 of whom have been confirmed. There were 60 vacancies in the federal judiciary, as of December 8, 2020. Of those vacancies, 48 had pending nominations.

Additional reading:



Wendlandt sworn in as Massachusetts supreme court justice

Image of the John Adams Courthouse in Massachusetts

On December 4, 2020, Dalila Wendlandt was sworn in as a new justice on the Massachusetts Supreme Judicial Court, the state’s court of last resort. Wendlandt was nominated by Governor Charlie Baker (R) on November 3, 2020, and was the governor’s sixth nominee to the seven-member court. 

Wendlandt succeeded Barbara Lenk, who retired on December 1, upon reaching the court’s mandatory retirement age of 70 years old. Lenk was appointed to the court in 2011 by Gov. Deval Patrick (D).

Prior to joining the state supreme court, Wendlandt joined the Massachusetts Appeals Court in 2017. She was nominated to the court by Baker and confirmed by the Governor’s Council. From 1997 to 2017, Wendlandt was an attorney with Ropes & Gray LLP. Wendlandt previously served as a law clerk to the Hon. John M. Walker Jr. of the U.S. Court of Appeals for the 2nd Circuit.

In 2020, there have been 22 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected. One vacancy occurred when a chief justice died, and 21 vacancies were caused by retirements. As of December 8, 2020, 15 of the 22 vacancies have been filled. 

Additional reading:



Bold Justice: Court begins December sitting

Bold Justice by Ballotpedia

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court heard five hours of arguments the week of November 30 and will hear five hours of arguments this week via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 45 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

In its October 2019 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases before SCOTUS during its December sitting.

November 30

  • Van Buren v. United States concerns the Computer Fraud and Abuse Act (CFAA).

    Nathan Van Buren was convicted in the U.S. District Court for the Northern District of Georgia of felony computer fraud in violation of the Computer Fraud and Abuse Act (CFAA). Van Buren, a police sergeant in Cumming, Georgia, had accessed the Georgia Crime Information Center database to obtain information for a local man named Andrew Albo in exchange for money. Van Buren moved for acquittal, arguing he had not exceeded authorized access according to Section 1030(a)(2) of the CFAA. The district court rejected the motion. On appeal, the U.S. Court of Appeals for the 11th Circuit affirmed Van Buren’s conviction.

    The issue: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”
  • Trump v. New York concerns congressional apportionment following the 2020 U.S. Census. The Trump administration is asking the U.S. Supreme Court to consider if the president could order the commerce secretary to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.


President Donald Trump (R) issued a memorandum to Commerce Secretary Wilbur Ross regarding congressional apportionment following the 2020 U.S. Census. The memorandum said it was the policy of the United States to exclude individuals living unlawfully in the U.S. from the census apportionment base. A coalition of state and local governments and non-governmental organizations (NGOs) sued the government in the U.S. District for the Southern District of New York, arguing the policy violated the U.S. Constitution and laws governing the census and apportionment.

The administration argued (1) the court did not have jurisdiction to review the claims and (2) the policy was legal. The district court ruled in favor of the coalition, holding the president exceeded his authority in issuing the memorandum. The administration appealed to the U.S. Supreme Court.


The issues:

(1) Whether the coalition of state and local governments and NGOs have the legal right, also known as standing, to challenge the memorandum;

(2) whether the president has the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base.

December 1

  • Nestlé USA v. Doe I, consolidated with Cargill v. Doe I, concerns the Alien Tort Statute (“ATS”). Under 28 U.S. Code § 1350, the Alien Tort Statute says “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” A tort is a wrongful act other than a breach of contract leading to civil legal liability. According to SCOTUSblog, “The Alien Tort Statute is an 18th-century law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international human rights laws.”


A group of Malian citizens (“claimants”) filed a lawsuit under the ATS against corporations including Nestlé USA and Cargill, Inc. The claimants alleged they were subjected to child slavery on cocoa farms in Côte d’Ivoire. The U.S. District Court for the Central District of California dismissed the case, holding that corporations could not be held liable under the ATS. On appeal, the 9th Circuit vacated the lower court’s ruling. 


The issues

1. Whether a domestic corporation, alleged to be aiding and abetting violations of international human rights law outside of the United States, can be sued under the Alien Tort Statute.
2. Whether the courts have the authority to impose liabilities on a domestic corporation under the ATS.


In 2004, Congress authorized the Internal Revenue Service (IRS) to identify and gather details about potential tax shelters. The IRS set up requirements regarding transactions that are required to be reported to the IRS. In 2016, the IRS published a notice identifying certain “micro-captive transactions” as “transactions of interest,” under the umbrella of reportable transactions.

In 2017, risk management consulting firm CIC Services challenged the updated requirements in district court as being beyond the scope of the IRS’ authority and sought to enjoin, or halt, the notice’s enforcement. The IRS moved to dismiss the complaint, citing a lack of subject matter jurisdiction. The court granted the defendant’s motion. On appeal, the 6th Circuit affirmed the district court’s dismissal. 

The issue: “Whether the Anti-Injunction Act’s bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.”

December 2

  • Edwards v. Vannoy concerns the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020).

    A non-unanimous jury found Thedrick Edwards guilty of five counts of armed robbery, one count of attempted armed robbery, two counts of aggravated kidnapping, and one count of aggravated rape. Edwards was sentenced to 30 years imprisonment on each armed robbery count and to life imprisonment on the aggravated kidnapping and aggravated rape counts. Edwards appealed his conviction because it was decided by a non-unanimous jury verdict, which was since deemed unconstitutional by the Supreme Court in Ramos v. Louisiana (2020), and he appealed his sentence. Edwards’ appeal was denied in state and federal court. He then filed a petition for habeas corpus with the U.S. District Court for the Middle District of Louisiana. The district court denied Edwards’ claim. Edwards appealed to the U.S. Court of Appeals for the 5th Circuit, which refused to issue a certificate of appealability. A certificate of appealability is required to appeal a complaint arising from a state court during a habeas corpus proceeding.


The issue: Whether the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020) applies retroactively to cases on federal collateral review. In Ramos v. Louisiana, the U.S. Supreme Court held that the 6th Amendment’s right to a unanimous jury verdict to support a conviction applies in both federal and state courts.

  • Department of Justice v. House Committee on the Judiciary was originally scheduled for one hour of oral argument on December 2. On November 20, the court granted the House Judiciary Committee’s motion to remove the case from its December argument calendar. The House Judiciary Committee had asked the court to reschedule arguments following the Nov. 3, 2020, presidential and congressional elections. The Justice Department said that it did not object to the motion.


The case concerns the Federal Rules of Criminal Procedure and whether a U.S. Senate-conducted impeachment trial counts as a judicial proceeding for the purposes of disclosing secret grand jury information. 

The following cases will be heard the week of December 7:

December 7

  • Republic of Hungary v. Simon concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). The expropriation exception (28 U.S.C. § 1605(a)(3)) allows lawsuits against a foreign state involving “property taken in violation of international law.” International comity means that U.S. courts defer to another nation’s laws when legal action is brought under those laws.

    The case arises out of conflicting rulings in the 7th Circuit and the D.C. Circuit. Jewish survivors of the Hungarian Holocaust sued the Hungarian government and Magyar Államvasutak Zrt., Hungary’s state-owned railway company. The survivors sought damages for property the Hungarian government confiscated during World War II. The 7th Circuit ruled that under the doctrine of international comity, the survivors should first file suit in Hungarian courts. The D.C. Circuit held the opposite view.

    The issue: Was it proper for the district court to abstain from exercising jurisdiction under the FSIA for reasons of international comity because the respondents did not try to obtain legal remedies in Hungary before filing the lawsuits in the United States?
  • Federal Republic of Germany v. Philipp concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA).

    Jewish art dealers sold a collection of medieval art to Germany in the 1930s. The art dealers’ heirs claimed the sale was invalid and filed a lawsuit in the District of Columbia, invoking the expropriation exception of the FSIA. Germany and the SPK argued (1) that the expropriation exception did not apply and (2) that international comity did not allow the claimants to sue in D.C. The D.C. Circuit held the art sale violated international law within the meaning of the expropriation exception. It also held courts could not abstain from presiding over such claims based on international comity.


The issues:

(1) Does the FSIA’s expropriation exception require foreign states to defend themselves in U.S. courts when charged with illegally taking property from their own citizens on their own territory?

(2) If the expropriation exception permits these claims, can a U.S. court decline to exercise jurisdiction under the international comity doctrine? 

December 8

  • Facebook v. Duguid concerns the definition of an automated telephone dialing system in the Telephone Consumer Protection Act (TCPA).

    Facebook allows users to receive text message alerts when their accounts are accessed from unknown devices or browsers. Noah Duguid did not have a Facebook account and never consented to receive those alerts. He sued Facebook after receiving multiple text messages and attempting to opt out of receiving the alerts. He claimed Facebook violated the TCPA’s ban on calling or sending text messages to cell phones using an automated telephone dialing system (ATDS). The U.S. District Court for the Northern District of California dismissed the lawsuit. On appeal, the 9th Circuit reversed the district court’s ruling.

    The issue: “Whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.'”
  • Henry Schein Inc. v. Archer and White Sales Inc. concerns arbitration agreements.

    Dental equipment distributor Archer & White Sales, Inc. entered into a distribution agreement with dental equipment manufacturer Pelton and Crane. The contract provided for arbitration of any dispute arising under or related to the agreement, except for actions seeking injunctive relief, among other potential actions. Henry Schein, Inc., a distributor and dental equipment manufacturer, was Pelton and Crane’s successor-in-interest, meaning that it would succeed Pelton and Crane as the interested party related to the property covered in the agreement. Archer sued Schein, alleging that the company violated the Sherman Antitrust Act and the Texas Free Enterprise and Antitrust Act. Schein moved to compel arbitration proceedings and to halt Archer’s suit and a magistrate judge granted the request. The Eastern District of Texas reconsidered the case and reversed the order, resuming proceedings in court. On appeal, the 5th Circuit affirmed the district court’s ruling. On appeal to the Supreme Court, SCOTUS vacated the 5th Circuit’s judgment and remanded the case back to the 5th Circuit for reconsideration. The 5th Circuit affirmed the district court’s ruling once again. Schein appealed to the Supreme Court for a second time.

The issue: “Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.”

December 9

  • Collins v. Mnuchin, consolidated with Mnuchin v. Collins, concerns the extent of the president’s appointment and removal powers and control of independent federal agencies.

    The Federal Housing Finance Agency (FHFA) worked with the U.S. Department of the Treasury to change how private shareholders of Fannie Mae and Freddie Mac are compensated when the companies make a profit. The shareholders sued, arguing that the change was beyond the powers of the FHFA and the Treasury and that the structure of the FHFA was unconstitutional.

    The issues:

(1) Whether FHFA’s structure violates the separation of powers.

(2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • December 7: 
    • SCOTUS will release orders. 
    • SCOTUS will hear arguments in two cases.
  • December 8: SCOTUS will hear arguments in two cases.
  • December 9: SCOTUS will hear arguments in one case.
  • December 11: SCOTUS will conference. A conference is a private meeting of the justices.
  • December 14: SCOTUS will release orders.

SCOTUS trivia

Which of the following did not serve as a Chief Justice of the United States Supreme Court?

1. John Jay

2. Thurgood Marshall

3. William Rehnquist

4. Salmon Portland Chase

Choose an answer to find out!

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 November 2 to December 1.

Highlights

  • Vacancies: There has been one new judicial vacancy since the November 2020 report. As of December 1, 53 out of 870 (6.1%) active Article III judicial positions on the courts covered in this report were vacant.

    Including the United States Court of Federal Claims and the United States territorial courts, 60 of 890 active federal judicial positions are vacant.
  • Nominations: There has been one new nomination since the November 2020 report.
  • Confirmations: There have been seven new confirmations since the November 2020 report.

Vacancy count for December 1, 2020

A breakdown of the vacancies at each level can be found in the table below. For a more detailed look at the vacancies on 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.

New vacancies

One judge has left active status, creating an Article III life-term judicial vacancy, since the previous vacancy count. A presidential nomination is required to fill an Article III vacancy. Nominations are subject to the advice and consent of the U.S. Senate.

The chart below shows the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017, to December 1, 2020.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of December 1.

New nominations

President Trump has announced one new nomination since the October 2020 report.

The president has announced 275 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between November 2 and December 1, 2020, the Senate confirmed seven of the president’s nominees to Article III courts.

Between January 2017 and December 1, 2020, the Senate confirmed 227 of President Trump’s judicial nominees—168 district court judges, 53 appeals court judges, three Court of International Trade judges, and three Supreme Court justices.

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, if you prefer, we also maintain a list of individuals the president has nominated.

Justice on center stage

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Elena Kagan

Kagan has been an associate justice since August 7, 2010. President Barack Obama (D) nominated Kagan on May 10, 2010, to succeed John Paul Stevens. The U.S. Senate voted to confirm Kagan 63-37 on August 5, 2010.

Image of Elena Kagan

Before joining the U.S. Supreme Court, Kagan was the solicitor general of the United States (2009-2010). Before that, she was a dean with Harvard Law School and a Huston Professor of Law with Harvard University. Click here to learn more about Kagan’s professional career.

Kagan was born and raised in New York, New York. She earned her A.B. from Princeton University in 1981 and a master’s in philosophy from Worcester College at the University of Oxford in 1983. Kagan received her J.D. from Harvard Law School in 1986.

In the 2019-2020 term, Kagan wrote the following opinions:



Bitnami