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Kate Carsella

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

SCOTUS grants review in two cases concerning law enforcement officers’ search-and-seizure authority

On November 20, 2020, the Supreme Court of the United States (SCOTUS) granted review in two cases for a total of two hours of oral argument during its October Term for 2020-2021. The cases have not yet been scheduled for argument. 

Caniglia v. Strom

The case: In 2015, Edward Caniglia and his wife had an argument at their home. During the argument, Caniglia brought out an unloaded gun from their bedroom. Mrs. Caniglia stayed the night at a nearby hotel. In the morning, she called the police to request a wellness check on her husband and an escort to their home, and she stated that she was concerned for her husband’s well-being. At the home, the police spoke with Caniglia. The sergeant determined that Caniglia was imminently dangerous to himself and to others. The police requested that Caniglia go to a nearby hospital for a psychiatric evaluation. Caniglia complied, alleging that he did so based on a promise from police that they would not confiscate his guns. The police record does not include evidence of such a promise. The sergeant entered the home and seized two firearms, two magazines, and ammunition. Later, Caniglia attempted to retrieve his firearms from the police department several times. His requests were denied. Caniglia filed suit in the U.S. District Court for the District of Rhode Island against the police department and the City of Cranston, Rhode Island, alleging violations to the Second and Fourth Amendments to the U.S. Constitution and to Rhode Island state law. The firearms were returned to Caniglia. The district court granted the defendants’ motion for summary judgment. On appeal, the U.S. Court of Appeal for the 1st Circuit affirmed the district court’s ruling.

The issue: Whether the Fourth Amendment’s warrant requirement “community caretaking” exception extends to the home.

United States v. Cooley

The case: In 2016, Crow Tribe of Montana Officer James Saylor detained Joshua Cooley and searched Cooley’s vehicle, which was pulled over in Indian Country on U.S. Route 212. Saylor confiscated several firearms and observed equipment that appeared to contain methamphetamine. Cooley was arrested and indicted in the U.S. District Court for the District of Montana. The district court granted Cooley’s motion to suppress evidence from Saylor’s search. The district court ruled Saylor acted outside of his authority by conducting an “unreasonable search and seizure” under the Indian Civil Rights Act. The U.S. government appealed, but the U.S. Court of Appeals for the 9th Circuit affirmed the lower court’s ruling. The U.S. government then appealed to the U.S. Supreme Court.

The issue: Whether the District of Montana and the 9th Circuit were wrong to suppress evidence on the theory that an Indian tribe police officer was unauthorized to detain and search a non-Indian based on a potential violation of state or federal law while on a public right-of-way in an Indian reservation.

The Supreme Court began hearing cases for the term on October 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. The court generally releases the majority of its decisions in mid-June.

As of November 24, 2020, the court had 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. The court had issued opinions in two cases this term. The cases were decided without argument.

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New York Court of Appeals Justice Eugene Fahey announces retirement

On November 10, 2020, State of New York Court of Appeals Justice Eugene Fahey announced his retirement from the court, scheduled for December 31, 2021, when he reaches the court’s mandatory retirement age of 70 years old.

Justice Fahey joined the State of New York Court of Appeals in 2015. He was appointed to the court by Gov. Andrew Cuomo (D).

Before serving on the state supreme court, Fahey served on the New York Supreme Court, Appellate Division from December 22, 2006, until 2015. He served on the court’s Criminal Division in 2005. Fahey was elected to the State Supreme Court in 1996, where he also presided over cases in Erie County and the 8th Judicial District. He served on the court until 2005. Fahey was elected to the Buffalo City Court in 1994 and served until 1996. He served as a law clerk to Judge Edgar C. NeMoyer in the New York Court of Claims before entering private practice in 1985, where he served as house counsel for Kemper Insurance Company until 1993. Fahey served on the Buffalo Common Council from 1978 to 1983 and again from 1988 to 1994.

Fahey earned a bachelor’s degree in political science from the State University of New York at Buffalo, cum laude, in 1974. He earned a J.D. in 1984 and a master’s degree in European history in 1998.

The seven justices of the New York Court of Appeals serve 14-year terms. They are appointed by the governor from a list of candidates provided by a judicial nominating commission, pending confirmation from the New York Senate.

The current chief justice of the court is Janet DiFiore, who was appointed by Gov. Cuomo in 2015. 

The remaining four active justices of the court are:

• Jenny Rivera – Appointed by Gov. Cuomo in 2013

• Michael Garcia – Appointed by Gov. Cuomo in 2016

• Rowan Wilson – Appointed by Gov. Cuomo in 2017

• Paul Feinman – Appointed by Gov. Cuomo in 2017

Associate Justice Leslie Stein is also scheduled to retire from the court in 2021, on June 4. At the time of the announcement, no reason was given for Stein’s retirement.

As of November 16, 2020, there are four supreme court vacancies scheduled to occur in 2021 in three of the 29 states where replacement justices are appointed instead of elected. The vacancies were triggered by retirements.

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Justice on New York’s highest court schedules retirement

On November 3, 2020, State of New York Court of Appeals Justice Leslie Stein announced her retirement from the court, scheduled for June 4, 2021. At the time of the announcement, no reason for Stein’s retirement was given.

Justice Stein joined the State of New York Court of Appeals in 2015. She was appointed to the court by Gov. Andrew Cuomo (D).

Before serving on the state supreme court, Stein was a judge with the New York Supreme Court, Appellate Division (Third Department) from 2008 to 2015. From 2001 to 2008, she served as a judge with the New York Supreme Court 3rd Judicial District. During that time, she served as an administrative judge of the Rensselaer County Integrated Domestic Violence Part from 2006 to 2008 and as the chair of the 3rd Judicial District Gender Fairness Committee from 2001 to 2005. Stein served as a city court judge with the Albany City Court from 1997 to 2001. She also served as an acting family court judge in 2001. From 1983 to 1997, Stein worked as a private practice lawyer. In 1981, Stein worked as a confidential law clerk for the Schenectady County Family Court.

Stein earned an undergraduate degree from Macalester College in 1978. She earned a J.D. from the Albany Law School in 1981.

The seven justices of the New York Court of Appeals serve 14-year terms. They are appointed by the governor from a list of candidates provided by a judicial nominating commission, pending confirmation from the New York Senate. The New York Court of Appeals is the state’s court of last resort.

The current chief justice of the court is Janet DiFiore, who was appointed by Gov. Cuomo in 2015. 

The remaining five active justices of the court are:

  • Jenny Rivera – Appointed by Gov. Cuomo in 2013
  • Eugene Fahey – Appointed by Gov. Cuomo in 2015
  • Michael Garcia – Appointed by Gov. Cuomo in 2016
  • Rowan Wilson – Appointed by Gov. Cuomo in 2017
  • Paul Feinman – Appointed by Gov. Cuomo in 2017

As of November 9, 2020, there are three supreme court vacancies scheduled to occur in 2021 in three of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements.

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Massachusetts governor nominates Budd to be chief justice of state supreme court

Image of the John Adams Courthouse in Massachusetts

On October 28, 2020, Gov. Charlie Baker (R) announced the nomination of Associate Justice Kimberly S. Budd as the Massachusetts Supreme Judicial Court’s chief justice. If confirmed, Budd would replace Ralph D. Gants, who died on September 14, 2020. Budd would also be the first Black woman to serve as chief justice in the court’s history. 

The chief justice of the Massachusetts Supreme Judicial Court is appointed by the governor with council approval, serving until they reach 70 years old, the age of mandatory retirement. If confirmed, Budd would reach the mandatory retirement age in October 2036. 

Budd joined the court as an associate justice in 2016. She was nominated to the court by Gov. Baker and confirmed by the Governor’s Council. Budd was an associate justice for the Superior Court in Massachusetts from 2009 to 2016. 

Budd earned an undergraduate degree from Georgetown University in 1988. She earned a J.D. from Harvard Law School in 1991. 

There are currently two vacancies on the Massachusetts Supreme Judicial Court. The second vacancy will be triggered by the upcoming retirement of Associate Justice Barbara Lenk, who will reach the mandatory retirement age in December 2020.

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.

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SCOTUS to hear arguments in five cases in first week of November

Image of the front of the United States Supreme Court building

On November 2, 2020, the Supreme Court of the United States will begin its November sitting. All arguments during its November and December sittings will be conducted via teleconference with live audio. The court made the decision to hold proceedings this way in accordance with public health guidance in response to COVID-19.

In the first week of November, the court will hear arguments in five cases. Each case will be allotted one hour for oral argument:

November 2

• In U.S. Fish and Wildlife Service v. Sierra Club, the Sierra Club challenged a new Environmental Protection Agency (EPA) rule and a biological opinion from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services). During that litigation, the Sierra Club submitted a Freedom of Information Act (FOIA) request for draft documents from a consultation between the three agencies that took place between 2011 and 2014. The Services released some documents but withheld others under FOIA Exemption 5. The Sierra Club sued Services in the U.S. District Court for the Northern District of California, which ruled Services had to disclose some documents but could withhold others. On appeal, the 9th Circuit Court of Appeals affirmed in part and reversed in part the district court’s decision. The government petitioned the U.S. Supreme Court for review.

The issues: Whether FOIA’s Exemption 5 protects draft documents from compelled disclosure if the documents were (1) created during a formal interagency consultation process under Section 7 of the Endangered Species Act and (2) later modified in the consultation process.

• In Salinas v. United States Railroad Retirement Board, Manfredo Salinas applied for disability annuity with the United States Railroad Retirement Board’s Disability Benefits Division in 2006. The application was denied. Salinas appealed to the Board to reconsider. The Board denied the request. In 2013, Salinas filed a new application for disability annuity. The Board granted the annuity. Salinas appealed the annuity’s start date and the amount and requested that his prior applications be reviewed. The Board denied the request. On appeal, the 5th Circuit dismissed Salinas’ petition for review. In 2019, Salinas petitioned SCOTUS for review.

The issue: Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a final decision that is subject to judicial review.

November 3

• In Jones v. Mississippi, Brett Jones, a fifteen-year-old, killed his grandfather. Jones was tried for murder in the Circuit Court of Lee County, Mississippi. He was convicted and sentenced to life imprisonment without parole. Following the U.S. Supreme Court’s decision in Miller v. Alabama (2012), the Mississippi Supreme Court ordered the county circuit court to hold a sentencing rehearing. The circuit court resentenced Jones to life in prison without parole. Jones appealed to the Mississippi Court of Appeals, which rejected his argument to reverse the sentence. The state supreme court then held oral arguments for the case before dismissing it. Jones petitioned the U.S. Supreme Court for review.

The issue: Whether the 8th Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

• In Borden v. United States, Charles Borden Jr. pleaded guilty to possessing a firearm as a felon. The U.S. District Court for the Eastern District of Tennessee, relying on the 6th Circuit Court’s decision in United States v. Verwiebe (2017) sentenced Borden to nine years and seven months of imprisonment under the Armed Career Criminal Act (ACCA). Borden objected to his sentence, arguing the district court’s application of Verwiebe to his case violated due process protections. On appeal, the 6th Circuit affirmed the district court’s ruling. Borden petitioned the U.S. Supreme Court for review.

The issue: Does the “use of force” clause in the ACCA encompass crimes with a mens rea of mere recklessness?

November 4

• In Fulton v. City of Philadelphia, Pennsylvania, the city of Philadelphia’s Department of Human Services began an investigation into two of its foster care provider agents for potential violations of the city’s anti-discrimination laws in 2018. The investigation was based on an allegation that the agencies refused to work with same-sex couples seeking to become foster parents. One of the agencies was a religious nonprofit organization, Catholic Social Services (“CSS”). CSS confirmed that it would not certify same-sex couples as foster parents. The city stopped referring foster children to the agency. CSS filed suit against the city in district court, citing violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act. The district court denied the request. CSS appealed to the 3rd Circuit, seeking emergency injunctive relief pending appeal. The circuit court denied the request. Then, CSS filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. The Court denied the request. On appeal, the 3rd Circuit affirmed the district court’s ruling. Sharonell Fulton petitioned the Supreme Court for review.

The issues:

(1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely that the government would allow the same conduct by someone who held different religious views—as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held?

(2) Whether Employment Division v. Smith should be revisited?

(3) Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?

Upcoming SCOTUS dates

Here are the upcoming dates of interest in November:

• November 2: SCOTUS will release orders and hear arguments in two cases.

• November 3: SCOTUS will hear arguments in two cases.

• November 4: SCOTUS will hear arguments in one case.

• November 6: SCOTUS will conference.

• November 9: SCOTUS will release orders and hear arguments in two cases.

• November 10: SCOTUS will hear arguments in one case.

• November 13: SCOTUS will conference

• November 16: SCOTUS will release orders.

• November 20: SCOTUS will conference.

• November 23: SCOTUS will release orders.

• November 30: SCOTUS will hear arguments in two cases.

As of October 28, SCOTUS has agreed to hear 41 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.

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SCOTUS to hear case concerning Fourth Amendment

On Oct. 19, 2020, the Supreme Court of the United States (SCOTUS) granted review in the case “Lange v. California” for a total of one hour of oral argument during its October Term for 2020-2021. The case originated from the California First District Court of Appeal. “Lange v. California” has not yet been scheduled for argument.

The case:  While Arthur Lange was driving home on the highway in Sonoma, California, California Highway Patrol Officer Aaron Weikert pursued Lange with the intention of conducting a traffic stop. Weikert followed Lange home and activated his overhead lights once Lange pulled into his home’s driveway. Lange pulled into the garage and the garage door began closing behind him. Weikert approached Lange and stopped the garage from closing with his foot. He questioned Lange and asked if Lange knew Weikert was following him. Lange stated that he did not know Weikert was following him. Weikert stated he smelled alcohol on Lange’s breath and charged Lange with driving under the influence.

At trial, Lange claimed that Weikert’s entry into Lange’s home violated the Fourth Amendment to the U.S. Constitution since Weikert did not have a warrant to enter Lange’s home, and the court moved to suppress a video recording of the incident. The trial court concluded that the officer had probable cause, denied the motion to suppress, and issued a conviction for Lange. Following that action, a civil court ruled that Lange’s arrest was unlawful, while an appellate court ruled that the arrest was lawful. On appeal to the California First District Court of Appeal, the court affirmed the conviction.

The issue: Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.

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. The court generally releases the majority of its decisions in mid-June.

As of October 19, 2020, the court had agreed to hear 39 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.

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Rhode Island Supreme Court justice set to retire in December

Rhode Island Supreme Court Justice Francis Flaherty is retiring on December 31, 2020. Flaherty announced plans to pursue other interests following his retirement.

Flaherty earned a bachelor’s degree from Providence College in 1968. He earned a J.D., cum laude, from Suffolk University Law School in 1975.

Flaherty’s career experience includes working as an attorney in private practice in Warwick, Rhode Island, serving as an assistant city solicitor, and serving with the Warwick City Council from 1978 to 1985. Flaherty was elected Mayor of Warwick and served from 1984 to 1991. He also served as a member of the Rhode Island Board of Governors for Higher Education from 1988 to 2003. He was appointed to the Rhode Island Supreme Court by Gov. Donald Carcieri (R) in 2003.

The five justices of the Rhode Island Supreme Court are appointed by the governor with help from a nominating commission. Supreme court nominees must be approved by both the state House and the state Senate.

The current chief justice of the court is Paul Suttell, who was appointed by Gov. Carcieri in 2003. Gov. Carcieri named Suttell as the chief justice of the court in 2009.

The remaining two active justices of the court are:
• Maureen McKenna Goldberg – Appointed by Gov. Lincoln Almond (R) in 1997
• William Robinson – Appointed by Gov. Donald Carcieri (R) in 2004

Rhode Island Supreme Court Justice Gilbert Indeglia retired from the court on June 30, 2020. Indeglia’s seat is currently vacant.

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. Thirteen vacancies are in states where a Democratic governor appoints the replacement. Eight are in states where a Republican governor appoints the replacement. One vacancy is in a state where the state supreme court votes to appoint the replacement.

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SCOTUS grants review in seven cases for 2020-2021 term

Image of the front of the United States Supreme Court building

On October 2, 2020, the Supreme Court of the United States (SCOTUS) granted review in seven cases for a total of four hours of oral argument during its October Term for 2020-2021. The cases have not yet been scheduled for argument.

FCC v. Prometheus Radio Project (Consolidated with National Association of Broadcasters v. Prometheus Radio Project)
• The case FCC v. Prometheus Radio Project originated from the U.S. Court of Appeals for the 3rd Circuit and was consolidated with the case National Association of Broadcasters v. Prometheus Radio Project. The consolidated cases concern changes the Federal Communications Commission (FCC) made to media ownership rules and whether the FCC adequately considered the rule changes’ impact on women-owned and minority-owned media.

BP P.L.C. v. Mayor and City Council of Baltimore
• The case BP P.L.C. v. Mayor and City Council of Baltimore originated from the U.S. Court of Appeals for the 4th Circuit. The case concerns the authority of a court of appeals to review issues in removal orders. Justice Samuel Alito recused himself from the case.

Barr v. Dai (Consolidated with Barr v. Alcaraz-Enriquez)
• The case Barr v. Dai originated from the U.S. Court of Appeals for the 9th Circuit and was consolidated with the case Barr v. Alcaraz-Enriquez. The consolidated cases concern the Immigration and Nationality Act (INA), specifically relating to the credibility of an immigrant’s testimony before an immigration judge, the Board of Immigration Appeals, and U.S. Circuit Courts of Appeal.

Brnovich v. Democratic National Committee (Consolidated with Arizona Republican Party v. Democratic National Committee)
• The case Brnovich v. Democratic National Committee originated from the U.S. Court of Appeals for the 9th Circuit and was consolidated with the case Arizona Republican Party v. Democratic National Committee. The cases concern voting policies in Arizona and Section 2 of the Voting Rights Act.

The Supreme Court began hearing cases for the term on October 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. The court generally releases the majority of its decisions in mid-June.

As of October 7, 2020, the court had agreed to hear 35 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.

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Trump has appointed second-most federal judges through October 1 of a president’s fourth year

Donald Trump has appointed and the Senate has confirmed 218 Article III federal judges through October 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 260 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through October 1 of their fourth year in office is 197.

The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 55, while Reagan appointed the least with 28. Trump’s 53 appointments make up 29% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 161. Carter appointed the most with 202, and Reagan appointed the fewest with 121. Trump has appointed 161 district court judges so far. Those appointments make up 24% of the 677 judgeships across the district courts.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

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Judicial nominee confirmed to U.S. Court of Federal Claims

On September 22, 2020, the United States Senate confirmed the nomination of Edward Meyers to a federal judgeship on the United States Court of Federal Claims by a 66-27 vote. Meyers will join the court upon receiving his judicial commission and taking his judicial oath. 

Meyers was originally nominated to the seat by President Donald Trump (R) on November 19, 2019. The nomination was returned to the president at the sine die adjournment of the U.S. Senate on January 3, 2020. The president officially renominated Meyers on January 6. Meyers was nominated to replace Judge Lawrence J. Block, who retired on January 8, 2016. Meyers had his hearing before the Senate Judiciary Committee on January 8, 2020. Meyers was reported to the full Senate on March 12, 2020, after a 15-6 vote by the Senate Judiciary Committee.

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

  • Five vacancies
  • Eight Republican-appointed judges and three Democrat-appointed judges.

In addition to Meyers, President Trump has appointed five judges to the court. President George W. Bush (R) appointed two judges to the court, and President Barack Obama (D) appointed three judges to the court.

Since taking office, President Trump has nominated 269 individuals to federal judgeships, 217 of whom have been confirmed. There were 78 vacancies in the federal judiciary, as of September 1, 2020. Of those vacancies, 47 had pending nominations.

Additional reading
United States Court of Federal Claims
Federal judges nominated by Donald Trump
Article I tribunal



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