Author

Sara Reynolds

Sara Reynolds is a staff writer at Ballotpedia and can be reached at sara.reynolds@ballotpedia.org

Florida governor delays state supreme court selection due to coronavirus

On March 19, 2020, Florida Gov. Ron DeSantis (R) announced he would delay nominating individuals to two Florida Supreme Court vacancies until at least May 1. The governor said he had not had time to review the candidates’ application materials because of the coronavirus pandemic. Normally under state law, DeSantis would have needed to select the two new justices by March 23.

Two seats on the Florida Supreme Court became vacant after Justices Robert J. Luck and Barbara Lagoa were confirmed to the United States Court of Appeals for the 11th Circuit on November 19 and November 20, 2019, respectively. President Donald Trump (R) nominated both judges to the 11th Circuit on October 15, 2019.

Under Florida law, state supreme court justices are chosen through a process of assisted appointment, where the governor chooses a nominee from a list of potential candidates provided by a judicial nominating commission (JNC). On January 23, the JNC submitted nine nominees to the governor. Lagoa’s and Luck’s replacements will be Gov. DeSantis’ fourth and fifth nominees to the seven-member supreme court.

DeSantis declared a state of emergency on March 9 in response to the coronavirus pandemic. At the time of the emergency declaration, the Florida Department of Health confirmed that 13 residents tested positive for the virus.

https://ballotpedia.org/Florida_Supreme_Court_justice_vacancies_(November_2019)

Additional reading:
Florida Supreme Court
Judicial selection in Florida
Florida Supreme Court elections, 2020
Florida judicial elections



Georgia Supreme Court to review canceled supreme court election

Two candidates are challenging the cancelation of a special election to fill a Georgia Supreme Court vacancy. The special election was previously scheduled for May 19, 2020, to fill Justice Keith Blackwell’s seat, but it was canceled after Blackwell announced he was retiring, effective November 18, 2020. A statement from the Georgia Supreme Court said the governor would appoint Blackwell’s replacement. Secretary of State Brad Raffensperger (R) subsequently canceled the election.

Former Congressman John Barrow (D) and former state Representative Beth Beskin (R) filed separate legal challenges in Fulton County Superior Court, asking the judge to order Raffensperger to put the election back on the calendar. On March 16, Fulton County Superior Court Judge Emily Richardson denied the petitions, saying Barrow and Beskin did not show they had “a clear right” to require the secretary of state to hold an election.

Barrow and Beskin both appealed Judge Richardson’s decision. The Georgia Court of Appeals transferred Barrow’s case to the state supreme court, and Beskin appealed to the high court directly.

The Georgia Supreme Court issued an order consolidating and ordering an expedited review of the two cases. Five of the eight sitting justices recused themselves from the case. They were replaced by substitute justices. Chief Justice Harold Melton, Presiding Justice David Nahmias, and Justice Sarah Warren did not recuse themselves.

The Georgia Judicial Nominating Commission (JNC) received 29 applications to succeed Blackwell. When a vacancy appears on a state court, the JNC solicits applications and interviews candidates. The commission then submits a list of five names to the governor for consideration. The governor is not required to select an individual from that list.

Additional reading:
Georgia Supreme Court elections, 2020
Georgia Supreme Court
Judicial selection in Georgia
Georgia judicial elections
Georgia Judicial Nominating Commission



Bold Justice: SCOTUS postpones March sitting

Ballotpedia's Bold Justice
In response to the coronavirus pandemic, Ballotpedia is monitoring the impact of the outbreak on U.S. politics and elections and providing comprehensive coverage to our readers. This coverage includes federal, state, and local government actions; changes in election dates and procedures; and affected elected officials.

For for the latest developments, see the following articles:


Welcome to the March 23 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. 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


Arguments postponed

On March 16, 2020, the U.S. Supreme Court announced it was postponing the 11 hours of oral arguments originally scheduled during its March sitting. In a press release, the court said the delay was “in keeping with public health precautions recommended in response to COVID-19.”

COVID-19 refers to coronavirus disease 2019, caused by the virus SARS-CoV-2. Click here for more information about political responses to the coronavirus pandemic.

The court last postponed arguments in October 1918 in response to the Spanish flu epidemic. In August 1793 and 1798, argument calendars were shortened in response to yellow fever outbreaks.

The court has heard arguments in 59 of the 73 cases it accepted to hear this term. Click here to read more about SCOTUS’ current term.


Court closes indefinitely to the public

The court announced on March 12 that it was closing to the public indefinitely, beginning at 4:30 p.m. that day. The court posted on its website, “Out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court Building will be closed to the public from 4:30 p.m. on March 12, 2020, until further notice.”


Opinions

As of publication, the court had issued decisions in 16 cases and dismissed one case without a decision this term. The court released opinions in four cases on March 23. We’ll cover those in our next edition of Bold Justice!


Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest, pending further notice:

  • March 23: SCOTUS released orders and opinions.

  • March 27: SCOTUS will conference. A conference is a private meeting of the justices.

  • March 30: SCOTUS will release orders.


SCOTUS trivia


The court last postponed arguments in October 1918 in response to the Spanish flu epidemic. Who was the chief justice of the court in 1918?  


State & local courts respond to coronavirus

In addition to SCOTUS, a number of state and local government offices and services are either limited or closed due to the coronavirus pandemic. We’ve looked at school closurespostponed primaries, and quarantined elected officials.

As of March 20, 32 states had suspended in-person judicial proceedings statewide. Sixteen states suspended in-person proceedings on the local level. Two states have had no change to their court schedule. Click here for more information on state court responses to the coronavirus pandemic.

Click here to learn more.



U.S. Supreme Court postpones March sitting, closes indefinitely

The U.S. Supreme Court announced it was postponing the 11 hours of oral arguments originally scheduled during its March sitting. In a press release, the court said the delay was “in keeping with public health precautions recommended in response to COVID-19.”

The court has heard arguments in 59 of the 73 cases it accepted to hear this term. As of February 26, the court had issued decisions in 12 cases and dismissed one case without a decision this term.

The court had previously announced on March 12 that it was closing to the public indefinitely, beginning at 4:30 p.m. that day. The court posted on its website, “Out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court Building will be closed to the public from 4:30 p.m. on March 12, 2020, until further notice.”

The court noted it planned to hold a private conference of the justices on March 20 and release orders from the conference on March 23.

The court last postponed arguments in October 1918 in response to the Spanish flu epidemic. In August 1793 and 1798, argument calendars were shortened in response to yellow fever outbreaks.

Additional reading:


Commission sends supreme court recommendations to Georgia Gov. Kemp

The Georgia Judicial Nominating Commission (JNC) recommended the following four candidates to Gov. Brian Kemp (R) for consideration to succeed retired Georgia Supreme Court Justice Robert Behnam:

    • Judge Carla W. McMillian of the Georgia Court of Appeals
    • Judge Verda Colvin of Bibb County Superior Court
    • Judge Sara Doyle of the Georgia Court of Appeals
    • Judge Shawn LaGrua of Fulton County Superior Court

Benham retired on March 1, 2020. Twenty-two candidates submitted applications to the JNC, which interviewed nine before selecting its four recommendations. The JNC consists of 18 members who are appointed by the governor.

Under Georgia law, if a vacancy appears on the Georgia Supreme Court, the position is filled by assisted appointment. The governor chooses an appointee from a list of candidates compiled by the JNC. The interim judge must run in the next general election held at least six months after the appointment, and, if confirmed by voters, he or she may finish the rest of the predecessor’s term.

Benham’s replacement will be Kemp’s first nominee to the nine-member state supreme court.

Additional reading:
Robert Benham
Georgia Supreme Court
Judicial selection in Georgia
Georgia judicial elections
Georgia Judicial Nominating Commission 



Only one U.S. Court of Appeal vacancy

Ballotpedia's Bold Justice

Welcome to the March 9 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Lost track of the judiciary over Super Tuesday? We’ve got you covered! Catch up on the latest news by following us on Twitter or subscribing to the Daily Brew.


We #SCOTUS so you don't have to


Arguments

The Supreme Court justices will not hear arguments this week. The court will next hear arguments on March 23. Click here to read more about SCOTUS’ current term.


Opinions

SCOTUS has ruled on one case since our March 2 issue. The court has issued rulings in 12 cases so far this term.

Click the links below to read more about the specific case SCOTUS ruled on since March 2:

  • March 3

    • Kansas v. Garcia was argued before the court on October 16, 2019.

      The case: Ramiro Garcia, Donaldo Morales, and Guadalupe Ochoa-Lara were convicted of identity theft in Johnson County, Kansas. In each case, prosecutors used Social Security numbers found on I-9 and W-4 employment forms as evidence of identity theft. Garcia, Morales, and Ochoa-Lara appealed their convictions, arguing the Immigration Reform and Control Act (IRCA) preempted their prosecution. On appeal, the Kansas Supreme Court reversed the three convictions.

      The outcome: In a 5-4 opinion, the court reversed and remanded the Kansas Supreme Court’s decision, holding the Kansas statutes under which Garcia, Morales, and Ochoa-Lara were convicted “are not expressly preempted.”

      Justice Samuel Alito wrote the opinion. Justice Clarence Thomas filed a concurring opinion, in which Justice Neil Gorsuch joined. Justice Stephen Breyer filed an opinion concurring in part and dissenting in part, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined.


Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest in March:

  • March 9: 

    • SCOTUS will release orders and/or opinions.

  • March 20: SCOTUS will conference. A conference is a private meeting of the justices.

  • March 23:

    • SCOTUS will release orders and/or opinions.

    • SCOTUS will hear arguments in two cases.

  • March 24: SCOTUS will hear arguments in two cases.

  • March 25: SCOTUS will hear arguments in two cases.

  • March 27: SCOTUS will conference.


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 February 4 to March 2.

Highlights

  • Vacancies: There has been one new judicial vacancy since the January 2020 report. As of March 3, 72 (or 8.3%) of 870 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, 78 of 890 active federal judicial positions are vacant.

  • Nominations: There have been 10 new nominations since the January 2020 report.

  • Confirmations: There have been six new confirmations since the January 2020 report.

Vacancy count for March 2, 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 left active status, creating an Article III vacancy. As an Article III judicial position, this vacancy must be filled by a presidential nomination. Nominations are subject to Senate confirmation.

The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) to March 2.



U.S. Court of Appeals vacancy

Judge E. Grady Jolly assumed senior status on October 3, 2017, creating a vacancy on the U.S. Court of Appeals for the 5th Circuit. This is currently the only vacancy on a U.S. Court of Appeal. The last time this occurred was in July 1984, when Judge John Butzner‘s seat on the 4th Circuit Court of Appeals was the only vacancy. There is currently no nominee pending to replace Jolly.

As of publication, there are two upcoming Court of Appeals vacancies. Andrew Brasher was already confirmed to succeed Judge Ed Carnes on the 11th Circuit. Carnes is expected to assume senior status on June 30. Judge Thomas Griffith announced he would retire from the court on September 1. There is no nominee pending for Griffith’s seat.

U.S. District Court vacancies

The following map displays federal district court vacancies as of March 2.



New nominations

President Trump has announced 10 new nominations since the January 2020 report.

  • David Dugan, to the U.S. District Court for the Southern District of Illinois.

  • Iain D. Johnston, to the U.S. District Court for the Northern District of Illinois.

  • Franklin U. Valderrama, to the U.S. District Court for the Northern District of Illinois.

  • Christy Wiegand, to the U.S. District Court for the Western District of Pennsylvania.

  • Saritha Komatireddy, to the U.S. District Court for the Eastern District of New York.

  • Jennifer Rearden, to the U.S. District Court for the Southern District of New York.

  • J. Philip Calabrese, to the U.S. District Court for the Northern District of Ohio.

  • James Knepp II, to the U.S. District Court for the Northern District of Ohio.

  • Brett H. Ludwig, to the U.S. District Court for the Eastern District of Wisconsin.

  • Michael J. Newman, to the U.S. District Court for the Southern District of Ohio.

The president has announced 249 Article III judicial nominations since taking office 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 February 4 and March 2, 2020, the Senate confirmed six of the president’s nominees to Article III courts.

Since January 2017, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two 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 President Trump has nominated.


Looking ahead


We’ll be back March 23 with a new edition of Bold Justice. 

Click here to learn more.



SCOTUS takes up case questioning ACA’s individual mandate

The U.S. Supreme Court agreed to hear a case in its October 2020-2021 term concerning the Patient Protection and Affordable Care Act (ACA). The case, California v. Texas, is consolidated with Texas v. California, and came on a writ of certiorari to the U.S. Court of Appeals for the 5th Circuit.

In 2010, President Barack Obama (D) signed the ACA into law. The ACA established requirements for individuals to have health coverage and instituted fines for those without coverage.

In 2018, 20 states filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging § 5000A of the ACA and claiming the law was unconstitutional. U.S. District Judge Reed O’Connor ruled the law was invalid.

On appeal, the U.S. Court of Appeals for the Fifth Circuit ruled § 5000A was unconstitutional and remanded the case. A group of states petitioned the U.S. Supreme Court for review, arguing (1) the respondents did not have the legal right to challenge the law and (2) the law was not unconstitutional.

SCOTUS will consider the following three issues:
(1) Whether the plaintiffs have established Article III standing to challenge the minimum coverage provision in § 5000A(a). The minimum coverage provision, also known as the individual mandate, requires individuals to have “minimum essential coverage.”

(2) Whether reducing the amount specified in § 5000A(c) to zero rendered the individual mandate unconstitutional.

(3) If so, whether the individual mandate is severable from the rest of the ACA.

Additional reading:



Ballotpedia releases federal judicial vacancy count for February

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from February 4, 2020, to March 2, 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 January 2020 report. There are 72 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, 78 of 890 active federal judicial positions are vacant.
Nominations: There have been 10 new nominations since the January 2020 report.
Confirmations: There have been six new confirmations since the January 2020 report.

New vacancies
There were 72 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.3, which is 0.3 percentage points lower than the vacancy percentage in January 2020.
• The nine-member U.S. Supreme Court does not have any vacancies.
• One (0.6%) of the 179 U.S. Appeals Court positions is vacant.
• 69 (10.2%) of the 677 U.S. District Court positions are vacant.
• Two (22.2%) of the nine U.S. Court of International Trade positions are 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 Constitution, are appointed for life terms.

One judge left active status, creating an Article III life-term judicial vacancy. As an Article III judicial position, this vacancy must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.
• Judge Andrew Brasher left his seat on the U.S. District Court for the Middle District of Alabama after he was elevated to the U.S Court of Appeals for the 11th Circuit.

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 the inauguration of President Donald Trump (R) and as of March 2, 2020.

New nominations
President Trump has announced 10 new nominations since the January 2020 report.
• David Dugan, to the U.S. District Court for the Southern District of Illinois
• Iain D. Johnston, to the U.S. District Court for the Northern District of Illinois
• Franklin U. Valderrama, to the U.S. District Court for the Northern District of Illinois
• Christy Wiegand, to the U.S. District Court for the Western District of Pennsylvania
• Saritha Komatireddy, to the U.S. District Court for the Eastern District of New York
• Jennifer Rearden, to the U.S. District Court for the Southern District of New York
• J. Philip Calabrese, to the U.S. District Court for the Northern District of Ohio
• James Knepp II, to the U.S. District Court for the Northern District of Ohio
• Brett H. Ludwig, to the U.S. District Court for the Eastern District of Wisconsin
• Michael J. Newman, to the U.S. District Court for the Southern District of Ohio

Since taking office in January 2017, President Trump has nominated 249 individuals to Article III positions.

New confirmations
Since February 4, 2020, the U.S. Senate has confirmed six of President Trump’s nominees to Article III seats. As of March 2, 2020, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.
• Andrew Brasher, confirmed to the U.S. Court of Appeals for the 11th Circuit
• Matthew Schelp, confirmed to the U.S. District Court for the Eastern District of Missouri
• Joshua Kindred, confirmed to the U.S. District Court for the District of Alaska
• John Kness, confirmed to the U.S. District Court for the Northern District of Illinois
• Philip Halpern, confirmed to the U.S. District Court for the Southern District of New York
• Silvia Carreno-Coll, confirmed to the U.S. District Court for the District of Puerto Rico

Click here to learn more.

Additional reading:



SCOTUS releases opinions

Ballotpedia's Bold Justice
Welcome to the March 2 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Stay up-to-date on the latest news by following us on Twitter or subscribing to the Daily Brew.

Ballotpedia's Bold Justice

Arguments

The Supreme Court will hear five hours of arguments this week. Click here to read more about SCOTUS’ current term.

In its October 2018 term, SCOTUS heard arguments in 69 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases SCOTUS will hear this week:

  • March 2
    • In Nasrallah v. Barr, Nidal Khalid Nasrallah, a citizen and native of Lebanon, pleaded guilty to two counts of receiving stolen property in interstate commerce. An immigration judge determined that one of Nasrallah’s convictions involved moral turpitude, which Nolo’s Plain-English Law Dictionary defines as “conduct that is shamefully wicked, an extreme departure from ordinary standards of morality, justice, or ethics.” The immigration judge also determined the conviction constituted a particularly serious crime, making Nasrallah subject to removal as an alien. However, the judge granted Nasrallah protection from removal under the Convention Against Torture (CAT).

      The case was appealed to the Board of Immigration Appeals, which affirmed in part and reversed in part the immigration judge’s decision, and ordered Nasrallah’s removal. Nasrallah petitioned the U.S. Court of Appeals for the 11th Circuit for review. The 11th Circuit denied in part and dismissed in part the petition, holding it lacked jurisdiction under 8 U.S. Code § 1252(a)(2)(C).

      Section 1252(a)(2)(C) prohibits courts from having “jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” certain criminal offenses.

      The issue (from SCOTUSblog): “Whether Section 1252(a)(2)(C), which bars judicial review of factual determinations in final orders of removal on criminal grounds, also bars judicial review of Nasrallah’s challenge to the denial of his application for deferral of removal under the CAT.”

    • In Department of Homeland Security v. Thuraissigiam, Vijayakumar Thuraissigiam, a Sri Lankan native, illegally entered the United States by crossing the border with Mexico in 2017. A U.S. Customs and Border Protection officer apprehended Thuraissigiam and the U.S. Department of Homeland Security (DHS) began expedited removal proceedings. An asylum officer and later an immigration judge decided Thuraissigiam did not have a credible fear of persecution in Sri Lanka.

      Thuraissigiam filed a petition for a writ of habeas corpus in the U.S. District Court for the Southern District of California. The district court dismissed the petition for lack of subject matter jurisdiction, ruling the court was not authorized to review claims under 8 U.S.C. § 1252(e).

      On appeal, the 9th Circuit Court of Appeals reversed and remanded the district court’s ruling. The 9th Circuit held § 1252(e)(2) violated Thuraissigiam’s rights under the U.S. Constitution’s Suspension Clause, which bars a writ of habeas corpus from being suspended once it has been issued.

      DHS filed a petition for review with the U.S. Supreme Court.

      The issue: Whether 8 U.S.C. § 1252(e)(2) is unconstitutional under the Suspension Clause.

  • March 3
    • Seila Law v. Consumer Financial Protection Bureau concerns the extent of the president’s appointment and removal powers. The Consumer Financial Protection Bureau (CFPB) issued a civil investigative demand to the California-based firm, Seila Law. Seila Law refused to comply, so the agency petitioned the U.S. District Court for the Central District of California, asking it to enforce the demand. Seila Law responded by arguing that the CFPB violated the U.S. Constitution’s separation of powers doctrine. The district court rejected Seila Law’s argument and ordered it to comply.

      Seila Law appealed to the 9th Circuit Court of Appeals, which affirmed the district court’s order.

      The issues:

  1. Whether the vesting of substantial executive authority in the CFPB, an independent agency led by a single director, violates the separation of powers.
  2. If the CFPB is found unconstitutional on the basis of the separation of powers, can 12 U.S.C. §5491(c)(3) be severed from the Dodd-Frank Act?The Dodd-Frank Act created the CFPB in 2010. 12 U.S.C. §5491(c)(3) of the Act established one agency director, a presidential appointee subject to Senate confirmation. The director serves a five-year term, and can be removed only for cause—”inefficiency, neglect of duty, or malfeasance in office.”
    • In Liu v. Securities and Exchange Commission, the Securities and Exchange Commission (SEC) sued business partners Charles Liu and Lisa Wang, alleging they had misappropriated funds and defrauded investors in their EB-5 visa business. The U.S. District Court for the Central District of California ruled in favor of the SEC, finding that Liu and Wang violated the Securities Act of 1933, and imposed civil penalties in addition to a disgorgement order requiring Liu and Wang to surrender to the SEC the millions of dollars they raised from investors.

      The 9th Circuit Court of Appeals affirmed the lower court’s ruling. Liu and Wang appealed to the U.S. Supreme Court, arguing the SEC lacked the legal authority to ask the district court to impose a disgorgement order.

      Disgorgement is a “remedy requiring a party who profits from illegal or wrongful acts to give up any profits he or she made as a result of his or her illegal or wrongful conduct.”

      The issue: Whether the SEC may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the U.S. Supreme Court has determined that such disgorgement is a penalty.

  • March 4
    • June Medical Services v. Gee is consolidated with Gee v. June Medical Services.

      June Medical Services, a clinic in Shreveport, Louisiana, challenged Louisiana Act 620 in court. Act 620 established requirements for doctors performing abortions, specifically that they be able to admit patients and provide diagnostic and surgical services to a hospital within 30 miles of the facility where the abortion is performed.

      The U.S. District Court for the Middle District of Louisiana issued a preliminary injunction. Louisiana appealed to the 5th Circuit Court of Appeals, which lifted the injunction. The U.S. Supreme Court then restored the injunction.

      While June Medical Services’ lawsuit was ongoing, the U.S. Supreme Court held in Whole Woman’s Health v. Hellerstedt that a Texas law similar to Act 620 was unconstitutional.

      On remand, the Middle District of Louisiana held Act 620 was unconstitutional. On appeal, the 5th Circuit reversed the district court’s ruling and denied an en banc rehearing.

      June Medical Services petitioned the U.S. Supreme Court for a writ of certiorari, arguing the 5th Circuit’s ruling “conflicts with Whole Woman’s Health in its result and its reasoning.”

      The issue: Whether the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the U.S. Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt (2016).

Opinions

SCOTUS ruled on seven cases since our February 24 issue. The court has issued rulings in 11 cases so far this term.

Click the links below to read more about the specific cases SCOTUS ruled on since February 24:

  • February 25
    • McKinney v. Arizona was argued before the court on December 11, 2019.

      The case: James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A U.S. district court denied McKinney’s petition for habeas corpus. On appeal, the 9th Circuit Court of Appeals instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentence.

      The outcome: In a 5-4 opinion, the court affirmed the Arizona Supreme Court’s ruling, holding that a state appellate court, rather than a jury, may conduct a reweighing of aggravating and mitigating circumstances on habeas corpus review in cases concerning the death penalty.

      Justice Brett Kavanaugh delivered the opinion of the court. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

    • Rodriguez v. Federal Deposit Insurance Corporation was argued before the court on December 3, 2019.

      The case: United Western Bank, a subsidiary of Colorado corporation United Western Bancorp, Inc. (UWBI), closed in 2011 after suffering $35.4 million in losses. The Federal Deposit Insurance Corporation (FDIC) was appointed as United Western Bank’s receiver. An agency or court appoints a receiver as an alternative to filing for bankruptcy. The receiver manages the assets of a bankrupt business.

      Also in 2011, the parent company, UWBI, filed a tax refund request of $4.8 million to recover a portion of United Western Bank’s 2008 taxes. In 2012, UWBI filed for bankruptcy. Both the FDIC and UWBI argued in bankruptcy court that the tax refund belonged to them. The bankruptcy court ruled the refund belonged to UWBI.

      On appeal, the U.S. District Court for the District of Colorado reversed the bankruptcy court’s decision. Simon Rodriguez, the Chapter 7 trustee for UWBI’s bankruptcy estate, appealed to the 10th Circuit Court of Appeals, which affirmed the district court’s ruling and remanded the case to the bankruptcy court.

      Rodriguez petitioned the U.S. Supreme Court to review the 10th Circuit’s decision, arguing circuit courts were divided on the question of tax refund ownership.

      The outcome: In a unanimous opinion, the court vacated and remanded the judgment of the 10th Circuit Court of Appeals, holding the Bob Richards rule “is not a legitimate exercise of federal common lawmaking,” in which federal judges—instead of Congress, agencies, or states—make laws. SCOTUS held federal judges “may appropriately craft the rule of decision in only limited areas.”

      The Bob Richards rule came from a 9th Circuit decision in In re Bob Richards Chrysler-Plymouth Corp., Inc. in 1973. The rule “presumes that a tax refund belongs to the subsidiary that caused the underlying loss unless the parties have entered into a tax agreement clearly assigning the refund to the parent.”

      Justice Neil Gorsuch delivered the opinion of the court.

    • Hernandez v. Mesa was argued before the court on November 12, 2019.

      The case: U.S. Customs and Border Patrol Agent Jesus Mesa shot and killed 15-year-old Mexican national Sergio Hernandez. The Hernandez family filed charges against Mesa. The U.S. District Court for the Western District of Texas dismissed the case.

      After several appeals, the U.S. Supreme Court heard arguments in Hernandez v. Mesa in 2016. Click here for more information about the 2016 case. At that time, SCOTUS vacated the 5th Circuit’s judgment and remanded the case so the 5th Circuit might reconsider its ruling in light of the Supreme Court’s opinion in Ziglar v. Abbasi (2017). In Ziglar, the U.S. Supreme Court held that it could not authorize an action for implied damages against former federal officials under the court’s precedent in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971).

      On remand, the 5th Circuit ruled the Hernandez family could not rely on Bivens to file charges and affirmed the district court’s dismissal of the case. Bivens provides for relief under the Fourth and Fifth Amendments when a U.S. government agent uses excessive, deadly force.

      The outcome: The court affirmed the decision of the United States Court of Appeals for the 5th Circuit in a 5-4 ruling, holding that the plaintiffs cannot sue the U.S. Customs and Border Patrol agent for damages under the U.S. Constitution and that the Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics holding does not extend to claims based on a cross-border shooting.

      Justice Samuel Alito delivered the opinion of the court. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

    • Monasky v. Taglieri was argued before the court on December 11, 2019.

      The case: Monasky v. Taglieri concerned the standard of review for “habitual residence” and how to establish “habitual residence” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction.

      Domenico Taglieri, an Italian citizen, and Michelle Monasky, an American citizen, were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.’s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the U.S. District Court for the Northern District of Ohio for A.M.T’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition. On appeal, the 6th Circuit Court of Appeals, sitting en banc, affirmed the district court’s ruling.

      The outcome: The U.S. Supreme Court affirmed the 6th Circuit’s decision in a unanimous ruling, holding an actual agreement between the parents on where to raise a child is not necessary to establish the child’s habitual residence.

      Justice Ruth Bader Ginsburg delivered the opinion of the court. Justice Clarence Thomas joined as to Parts I, III and IV, and filed an opinion concurring in part and concurring in the judgment. Justice Samuel Alito filed an opinion concurring in part and concurring in the judgment.

  • February 26
    • Intel Corp. Investment Policy Committee v. Sulyma was argued before the court on December 4, 2019.

      The case: The case concerned the interpretation of the Employee Retirement Income Security Act (ERISA) statute of limitations.

      Christopher Sulyma worked at Intel from 2010 to 2012, where he participated in retirement accounts an Intel investment committee managed. In 2015, Sulyma sued Intel, claiming the committee mismanaged his retirement accounts and violated the ERISA. The U.S. District Court for the Northern District of California granted summary judgment in favor of Intel, who argued Sulyma’s claims were untimely under Section 1113(2) of the ERISA.

      Section 1113(2) limits filing suit related to alleged fiduciary breaches to “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation.”

      The 9th Circuit Court of Appeals reversed the ruling and remanded the case.

      The outcome: The court affirmed the 9th Circuit’s decision in a unanimous ruling, holding that to meet the “actual knowledge” requirement of Section 1113(2), a plaintiff must be aware of an alleged breach or violation. Justice Alito wrote, “The addition of ‘actual’ in §1113(2) signals that the plaintiff’s knowledge must be more than ‘potential, possible, virtual, conceivable, theoretical, hypothetical, or nominal.'”

    • Holguin-Hernandez v. U.S. was argued before the court on December 10, 2019.

      The case: Gonzalo Holguin-Hernandez pleaded guilty to violating his supervised release by committing a new offense. The U.S. District Court for the Western District of Texas revoked his term of supervised release and sentenced him to one year in prison to be served consecutively with the sentence from his new conviction. Holguin-Hernandez challenged his one-year sentence as greater than necessary under 18 U.S.C. § 3553(a). On appeal, the 5th Circuit affirmed the district court’s judgment.

      SCOTUS was considering “whether a formal objection after the pronouncement of a sentence is necessary to invoke an appellate reasonableness review of the length of a defendant’s sentence.”

      The outcome: The court vacated and remanded the 5th Circuit’s decision in a unanimous ruling, holding a formal objection after a sentencing pronouncement is not necessary to invoke “an appellate challenge to the substantive reasonableness of the sentence.”

      Justice Breyer wrote, “A defendant who, by advocating for a particular sentence, communicates to the trial judge his view that a longer sentence is ‘greater than necessary’ has thereby informed the court of the legal error at issue in an appellate challenge to the substantive reasonableness of the sentence.”

    • Shular v. United States was argued before the court on January 21, 2020.

      The case: Eddie Shular pleaded guilty to charges of possession of a firearm by a convicted felon and possession of controlled substances. Shular was classified as an armed career criminal because of six previous drug convictions in Florida. He objected to the classification in court, arguing his previous convictions were not “serious drug offenses” under the Armed Career Criminal Act (ACCA). The U.S. District Court for the Northern District of Florida overruled the objection and sentenced Shular to concurrent terms of 15 years in prison on each count. On appeal, the 11th Circuit Court of Appeals affirmed the district court’s ruling.

      Shular appealed to the U.S. Supreme Court, pointing to a circuit split regarding the determination of serious drug offenses under the ACCA.

      The outcome: The court affirmed the 11th Circuit’s decision in a unanimous ruling, holding the ACCA’s “serious drug offense” definition refers to conduct and does not “call for a comparison to a generic offense.” Justice Ginsburg wrote, “The ‘serious drug offense’ definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses.”

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • March 2:
    • SCOTUS will release orders and/or opinions.
    • SCOTUS will hear arguments in two cases.
  • March 3: SCOTUS will hear arguments in two cases.
  • March 4: SCOTUS will hear arguments in one case.
  • March 6: SCOTUS will conference. A conference is a private meeting of the justices.
  • March 9: SCOTUS will release orders and/or opinions.
  • March 20: SCOTUS will conference.

SCOTUS trivia

Sandra Day O’Connor was the first woman to serve on the U.S. Supreme Court. Before joining SCOTUS, O’Connor served as the first female majority leader in which state Senate?

Federal Court action

Confirmations

The Senate confirmed one new nominee since our February 24 issue.

Since January 2017, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Nominations

President Trump has not announced any new Article III nominees since our February 24 edition.

The president has announced 245 Article III judicial nominations since taking office 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.

Vacancies

The federal judiciary currently has 78 vacancies. As of publication, there were 36 pending nominations.

According to the Administrative Office of U.S. Courts, an additional eight judges have announced their intention to leave active judicial status during Trump’s first term.

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

Committee action

The Senate Judiciary Committee has not reported any new nominees out of committee since our February 24 edition.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals President Trump has nominated.

Looking ahead

We’ll be back March 9 with a new edition of Bold Justice.

Click here to learn more.



U.S. Senate confirms nominee to District Court of Puerto Rico

Photo credit: Andrew Shiva / Wikipedia

The U.S. Senate has confirmed Silvia Carreño-Coll to the U.S. District Court for the District of Puerto Rico on a 96-0 vote. Overall, the Senate has confirmed 193 of President Trump’s judicial nominees—138 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Carreño-Coll was a federal magistrate judge for the District of Puerto Rico from 2011 to 2020. Before that, she was associate regional counsel in the Environmental Protection Agency’s Caribbean Environmental Protection Division (1995-2011), an assistant U.S. attorney in the District of Puerto Rico (1989-1995), and an attorney in the Puerto Rico Department of Justice (1986-1989). Carreño-Coll earned her B.A., cum laude, from Emerson College in 1983 and her J.D., cum laude, from the University of Puerto Rico School of Law in 1986.

Carreño-Coll succeeded Judge Jay Garia-Gregory, who assumed senior status on September 30, 2018. After Carreño-Coll received commission, the U.S. District Court for the District of Puerto Rico had five Republican-appointed judges, two Democrat-appointed judges, and no vacancies.

The U.S. District Court for the District of Puerto Rico is one of 94 U.S. District Courts. They are the general trial courts of the United States federal court system.

Click here to learn more about Silvia Carreno-Coll

Additional reading:
United States District Court for the District of Puerto Rico
United States District Court
Federal judicial appointments by president
Federal judges nominated by Donald Trump



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