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Kate Carsella

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

Bold Justice: Court begins December sitting

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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:



Ballotpedia releases federal judicial vacancy count for November

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from November 2, 2020, to December 1, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.

HIGHLIGHTS

Vacancies: There has been one new judicial vacancy since the October 2020 report. There are 53 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, 60 of 890 active federal judicial positions are vacant.

  • Nominations: There has been one new nomination since the October 2020 report.
  • Confirmations: There have been seven new confirmations since the October 2020 report.

New vacancies

There were 53 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 6.1.

  • The nine-member U.S. Supreme Court does not have any vacancies.
  • Three (1.7%) of the 179 U.S. Appeals Court positions are vacant.
  • 49 (7.3%) of the 677 U.S. District Court positions are vacant.
  • One (11.1%) of the nine U.S. Court of International Trade positions is vacant.

A vacancy occurs when a judge resigns, retires, takes senior status, or passes away. Article III judges, who serve on courts authorized by Article III of the U.S. Constitution, are appointed for life terms.

One judge left active status, creating one Article III life-term judicial vacancy, 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 1, 2020.

New nominations

President Donald Trump (R) has announced one new nomination since the October 2020 report.

  • Raúl Arias-Marxuach, to the United States Court of Appeals for the 1st Circuit.

New confirmations

Since November 2, 2020, the United States Senate has confirmed seven of President Trump’s nominees to an Article III seat. 

  • James Knepp, confirmed to the United States District Court for the Northern District of Ohio.
  • Aileen Cannon, confirmed to the United States District Court for the Southern District of Florida.
  • Benjamin Beaton, confirmed to the United States District Court for the Western District of Kentucky.
  • Toby Crouse, confirmed to the United States District Court for the District of Kansas.
  • Kristi Johnson, confirmed to the United States District Court for the Southern District of Mississippi.
  • Kathryn Kimball Mizelle, confirmed to the United States District Court for the Middle District of Florida.
  • Stephen Vaden, confirmed to the United States Court of International Trade.

As of December 1, 2020, the Senate has 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—since January 2017.

Additional reading:



Chief justice confirmed to Massachusetts Supreme Judicial Court

Image of the John Adams Courthouse in Massachusetts

On November 18, 2020, Massachusetts Supreme Judicial Court Justice Kimberly Budd was confirmed as the chief justice of the court. Budd was nominated to the position by Gov. Charlie Baker (R) on October 28, 2020. She succeeded former Chief Justice Ralph D. Gants, who passed away on September 14, 2020. Budd may serve as the chief justice of the court until she reaches the mandatory retirement age of 70.

Budd was first nominated to the supreme court by Gov. Baker on June 14, 2016, and confirmed by the Governor’s Council on August 10, 2016. She succeeded Justice Fernande Duffly after Duffly’s July 2016 retirement.

Budd was previously a superior court associate justice in Massachusetts. She was nominated to the superior court by Gov. Deval Patrick (D) in July 2009 and assumed office in September 2009.

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.

Additional reading:



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.

Additional reading:



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.

Additional reading:



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.

Additional reading:



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.

Additional reading:



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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