Author

Sara Reynolds

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

Bold Justice: Here’s to a new year—and new cases!

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court will hear arguments in five cases 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:

 

January 13

 

  • In Lucky Brand Dungarees v. Marcel Fashion Group, apparel companies Marcel Fashion Group, Inc. (“Marcel”) and Lucky Brand Dungarees, Inc. (“Lucky Brand”) filed several lawsuits against each other for trademark infringement. In 2011, Marcel sued Lucky Brand a third time for trademark infringement. The U.S. District Court for the Southern District of New York ruled a previous lawsuit barred Marcel from suing Lucky Brand. On appeal, the 2nd Circuit Court of Appeals reversed the decision.

    On remand, Lucky Brand moved to dismiss the suit, arguing a previous legal settlement agreement barred Marcel from suing Lucky Brand. The district court agreed, dismissing the case. Marcel appealed to the 2nd Circuit, which vacated the Southern District of New York’s ruling and remanded the case a second time.

    Lucky Brand appealed to the U.S. Supreme Court, arguing the 2nd Circuit’s decision conflicted with decisions from other circuit courts on similar issues.

    The issue: Whether, when a plaintiff asserts new claims, federal preclusion principles—which are intended to prevent the same issue or claim from being relitigated between the same parties—can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.

  • In Thole v. U.S. Bank, James Thole and Sherry Smith sued U.S. Bank over its management of a defined benefit pension plan. Thole and Smith alleged the bank violated the Employee Retirement Income Security Act of 1974 (ERISA) and engaged in prohibited transactions, causing the plan to become underfunded.

    U.S. Bank sought to dismiss the case, arguing the plaintiffs did not have the legal right to sue and the statute of limitations had run out on the ERISA claims. The district court dismissed in part and granted in part U.S. Bank’s motion.

    In 2014, the plan became overfunded. The district court dismissed the case as moot. Thole and Smith appealed to the 8th Circuit Court of Appeals, which affirmed the district court’s ruling.

    The plaintiffs then petitioned the U.S. Supreme Court to review the case, arguing the 8th Circuit’s ruling conflicted with other circuit court decisions.

    The issues:
    (1) May an ERISA plan participant or beneficiary seek injunctive relief against fiduciary misconduct under 29 U.S.C. 1132(a)(3) without demonstrating actual or imminent financial loss?

    (2) May an ERISA plan participant or beneficiary seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. 1132(a)(2) demonstrating actual or imminent financial loss?

    (3) Whether petitioners have demonstrated Article III standing.

    29 U.S.C. 1132(a) deals with civil enforcement and says a participant or beneficiary can bring civil action to recover benefits, enforce or clarify rights, or ask for “appropriate relief.” 

 

January 14

  • In Kelly v. United States, William Baroni and Bridget Kelly were convicted of defrauding federally funded programs, wire fraud, conspiracy to commit fraud, and conspiracy against civil rights.

    Baroni and Kelly allegedly participated in a scheme to reduce local traffic lanes on the George Washington Bridge, which spans Fort Lee, New Jersey, and New York City, to punish Fort Lee’s mayor for refusing to endorse Gov. Chris Christie’s (R) 2013 re-election bid. The alleged scheme became known as “Bridgegate.”

    Baroni and Kelly appealed their convictions to the 3rd Circuit Court of Appeals. The 3rd Circuit affirmed the fraud convictions but reversed and vacated the civil rights convictions.

    Kelly appealed the 3rd Circuit’s ruling to the U.S. Supreme Court, arguing the 3rd Circuit decision conflicted with U.S. Supreme Court precedent and decisions from other circuit courts.

    The issue: Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

 

 

  • Romag Fasteners v. Fossil concerns federal trademark law. Romag Fasteners, Inc., sued Fossil for patent and trademark infringement in the U.S. District Court for the District of Connecticut. A jury found Fossil guilty of unintentional patent and trademark infringement. The jury decided Fossil should pay more than $6.8 million in profits to Romag.

    In a separate trial, the district court ruled Romag was not entitled to receive profits because Fossil’s infringement was unintentional.

    On appeal, the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s ruling that the infringement was unintentional.

    Romag appealed to the U.S. Supreme Court, asking the court to clarify a circuit court split on requiring proof of willful infringement for rewarding profits.

    The issue: Whether, under section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer’s profits for a violation of section 43(a), id. § 1125(a).

    The Lanham Act provides for a national system of trademark registration and trademark protection for federally registered marks.

 

January 15

  • In Babb v. Wilkie, Dr. Noris Babb, a pharmacist working at the VA Medical Center in Bay Pines, Florida, sued the U.S. Department of Veterans Affairs (VA) secretary, alleging age and gender discrimination and a hostile work environment. The U.S. District Court for the Middle District of Florida rejected Babb’s claims, granting summary judgment to the VA secretary.

    On appeal, the 11th Circuit Court of Appeals reversed the district court’s ruling on Babb’s gender discrimination claim and affirmed the district court’s ruling on Babb’s age discrimination and hostile work environment claims. The court remanded the case.

    Babb petitioned the U.S. Supreme Court for review, arguing the 11th Circuit’s decision disadvantaged federal employees bringing discrimination claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA) of 1967.

    The issue: Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

    But-for causation indicates that but for an action, the result would not have happened.

 

 

Upcoming SCOTUS dates

Here are upcoming dates of interest in January:

  • January 13: 
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in two cases.
  • January 14: SCOTUS will hear arguments in two cases.
  • January 15: SCOTUS will hear arguments in one case.
  • January 17: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

The Supreme Court originally had only six justices. Your question for the week: Who was the first Chief Justice of the United States Supreme Court?

  1. John Jay
  2. Alexander Hamilton
  3. Richard Henry Lee
  4. John Adams

Choose an answer to find out!

Federal court action

Confirmations

The Senate has confirmed 15 nominees since our December 9 issue.

 Overall, the Senate has confirmed 187 of President Trump’s judicial nominees—133 district court judges, 50 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

Nominations

President Trump has announced four new Article III nominees since our December 9 edition.

The president has announced 238 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.

Federal Judicial nominations by month

Vacancies

The federal judiciary currently has 81 vacancies. As of publication, there were 16 pending nominations.

According to the Administrative Office of U.S. Courts, an additional 12 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 December 9 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.

Court in the spotlight

In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system.

There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.  

In this edition, we’re visiting the United States District Court for the District of New Jersey. The District of New Jersey has original jurisdiction over cases filed in New Jersey. Decisions of the court may be appealed to the 3rd Circuit Court of Appeals.

The District of New Jersey has 17 authorized judgeships. There are currently six vacancies. The breakdown of current active judges by appointing president is:

  • George W. Bush (R): Four judges
  • Barack Obama (D): Seven judges


Maine governor announces two supreme court appointments

Maine Governor Janet Mills (D) appointed appellate attorney Catherine Connors and Maine Superior Court Justice Andrew Horton to the Maine Supreme Judicial Court. Connors and Horton were the governor’s first and second nominees to the seven-member supreme court. Pending confirmation from the Maine State Senate, they will succeed Justices Jeffrey Hjelm and Donald Alexander.

Connors is an appellate lawyer with Pierce Atwood, where she handles civil and criminal litigation matters in federal and state courts. Before joining Pierce Atwood, Connors was a law clerk for Chief Judge John F. Grady of the U.S. District Court for the Northern District of Illinois.

Connors obtained her undergraduate degree, magna cum laude, from Northwestern University in 1981. She earned a J.D., cum laude, from the Northwestern University School of Law, where she was Order of the Coif, in 1984. During her legal studies, Connors was on the editorial board of the Northwestern University Law Review.

Horton is a superior court justice for the Cumberland County Superior Court in Maine. Gov. John Baldacci (D) first appointed Horton to this court in January 2007. Horton was a judge on the Maine District Courts from 1999 to 2007. He received an undergraduate degree from Harvard University and a J.D. from Georgetown University.

Selection of state supreme court judges in Maine occurs through gubernatorial appointment with Senate confirmation. Whether newly appointed or reappointed, judges serve seven-year terms. Appointed judges must be reappointed if they wish to serve additional terms.

Founded in 1820, the Maine Supreme Judicial Court is the state’s court of last resort and has seven judgeships. As of January 2020, two judges on the court were appointed by a Democratic governor, two by a Republican governor, and two by an independent governor. There was one vacancy on the court.

In 2020, there have been three supreme court vacancies in three of the 29 states where replacement justices are appointed instead of elected. The vacancies were caused by retirements. In 2019, there were 22 supreme court vacancies across 14 of the 29 states. Retirements caused 14 of the vacancies.

Click here to learn more.

Additional reading:
Maine Supreme Court justice vacancy (December 2019)
State supreme court vacancies, 2020
Maine Supreme Court
Judicial selection in Maine
Judges appointed by Janet Mills



Ballotpedia releases federal vacancy count for December

In this month’s federal vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from December 3, 2019, to January 2, 2020. Ballotpedia publishes the federal vacancy count at the start of each month.

HIGHLIGHTS

  • Vacancies: There have been three new judicial vacancies since the November 2019 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, 80 of 890 active federal judicial positions are vacant.
  • Nominations: There have been four new nominations since the November 2019 report.
  • Confirmations: There have been 23 new confirmations since the November 2019 report.

New vacancies
There were 72 vacancies out of 870 Article III judicial positions, a total vacancy percentage of 8.3%, which is 2 percentage points lower than in November 2019.

  • The nine-member U.S. Supreme Court does not have any vacancies.
  • One (0.6%) of the 179 U.S. Appeals Court positions are 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.

Three judges left active status, creating Article III life-term judicial vacancies. As Article III judicial positions, these 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.

  • Judge Morrison England assumed senior status on the United States District Court for the Eastern District of California.
  • Judge William Griesbach assumed senior status on the United States District Court for the Eastern District of Wisconsin.
  • Judge Ben Settle assumed senior status on the United States District Court for the Western District of Washington.

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 Trump and as of January 2, 2020.

New nominations
President Donald Trump (R) has announced four new nominations since the November 2019 report:

  • Thomas Cullen, to the U.S. District Court for the Western District of Virginia.
  • Anna Manasco, to the U.S. District Court for the Northern District of Alabama.
  • John L. Badalamenti, to the U.S. District Court for the Middle District of Florida.
  • Stephen P. McGlynn, to the U.S. District Court for the Southern District of Illinois.

Since taking office in January 2017, President Trump has nominated 238 individuals to Article III positions.

New confirmations
Since December 3, 2019, the U.S. Senate confirmed 23 of President Trump’s nominees to Article III seats. As of January 2, 2020, the Senate had confirmed 187 of President Trump’s judicial nominees—133 district court judges, 50 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

  • Eric Komitee, confirmed to a seat on the U.S. District Court for the Eastern District of New York.
  • R. Austin Huffaker, confirmed to a seat on the U.S. District Court for the Middle District of Alabama.
  • David Barlow, confirmed to a seat on the U.S. District Court for the District of Utah.
  • Sarah Pitlyk, confirmed to a seat on the U.S. District Court for the Eastern District of Missouri.
  • Douglas Cole, confirmed to a seat on the U.S. District Court for the Southern District of Ohio.
  • John Sinatra, confirmed to a seat on the U.S. District Court for the Western District of New York.
  • Sherri Lydon, confirmed to a seat on the U.S. District Court for the District of South Carolina.
  • Richard Myers II, confirmed to a seat on the U.S. District Court for the Eastern District of North Carolina.
  • Patrick Bumatay, confirmed to a seat on the U.S. Court of Appeals for the 9th Circuit.
  • Lawrence VanDyke, confirmed to a seat on the U.S. Court of Appeals for the 9th Circuit.
  • Matthew McFarland, confirmed to a seat on the U.S. District Court for the Southern District of Ohio.
  • Anuraag Singhal, confirmed to a seat on the U.S. District Court for the Southern District of Florida.
  • Bernard Jones, confirmed to a seat on the U.S. District Court for the Western District of Oklahoma.
  • Jodi Dishman, confirmed to a seat on the U.S. District Court for the Western District of Oklahoma.
  • Kea Riggs, confirmed to a seat on the U.S. District Court for the District of New Mexico.
  • Daniel Traynor, confirmed to a seat on the U.S. District Court for the District of North Dakota.
  • Stephanie Dawkins Davis, confirmed to a seat on the U.S. District Court for the Eastern District of Michigan.
  • Robert J. Colville, confirmed to a seat on the U.S. District Court for the Western District of Pennsylvania.
  • Karen Marston, confirmed to a seat on the U.S. District Court for the Eastern District of Pennsylvania.
  • John Gallagher, confirmed to a seat on the U.S. District Court for the Eastern District of Pennsylvania.
  • Mary Kay Vyskocil, confirmed to a seat on the U.S. District Court for the Southern District of New York.
  • Lewis Liman, confirmed to a seat on the U.S. District Court for the Southern District of New York.
  • Gary R. Brown, confirmed to a seat on the U.S. District Court for the Eastern District of New York.

Click here to learn more.

Additional reading:
Federal judicial appointments by president
United States federal courts
Current federal judicial vacancies
The Trump administration on federal courts
Judicial vacancies during Trump



December 2019 breakdown of state legislative party membership: 52.1% Republicans, 46.6% Democrats

December’s partisan count of the 7,383 state legislators across the United States shows 52.1% of all state legislators are Republicans and 46.6% are Democrats, which is consistent with November.

Ballotpedia tallies the partisan balance of state legislatures at the end of every month. This refers to which political party holds the majority of seats in each chamber. Republicans hold a majority in 61 chambers, and Democrats hold the majority in 37 chambers. One chamber (Alaska’s state House) has a power-sharing agreement between the two parties.

Altogether, there are 1,972 state senate and 5,411 state house offices. Republicans held 1,078 state senate seats—down three seats from November—and 2,768 state house seats—down seven seats from last month. Democrats held 3,444 of the 7,383 state legislative seats—876 state Senate seats (down two seats) and 2,568 state House seats (down 11 seats). Independent or third-party legislators held 36 seats. There were 57 vacant seats—an increase of 23 vacancies since November.

At the time of the 2018 elections, 7,280 state legislators were affiliated with either the Republican or Democratic parties. There were 3,257 Democratic state legislators, 4,023 Republican state legislators, 35 independent or third-party state legislators, and 68 vacancies.

Click here to learn more.

Additional reading:
Partisan composition of state houses
State senators
State representatives



Kansas governor announces supreme court appointment

Kansas Governor Laura Kelly (D) appointed Judge Evelyn Wilson to succeed Justice Lee Johnson on the Kansas Supreme Court. Johnson retired on September 8, 2019. Wilson is Kelly’s first nominee to the seven-member supreme court.At the time of her supreme court appointment, Wilson was the chief judge for the Third Judicial District in Shawnee County, Kansas. She first joined the district court in 2004. Before serving on the Third Judicial District Court, Wilson was an attorney in private practice. Wilson received her undergraduate degrees in business and economics from Bethany College in 1982, and her J.D. from Washburn University of Topeka in 1985.

In the event of a vacancy on the Kansas Supreme Court, the governor selects a replacement from a list of three individuals submitted by the Kansas Supreme Court Nominating Commission. Newly appointed justices serve for at least one year, after which they must run for retention in the next general election. Subsequent terms last for six years.

The Kansas Supreme Court Nominating Commission is a nine-member independent body created by the Kansas Constitution. The commission has nine members: four non-attorneys appointed by the governor and four attorneys selected by members of the bar in each of the state’s four congressional districts. The chair of the commission, the ninth member, is a lawyer chosen in a statewide vote of attorneys who are members of the Kansas Bar Association.

Founded in 1861, the Kansas Supreme Court is the state’s court of last resort and has seven judgeships. As of December 2019, four judges on the court were appointed by a Democratic governor and three judges were appointed by a Republican governor. There is one vacancy on the court.

In 2019, there have been 22 supreme court vacancies across 14 of the 29 states where replacement justices are appointed instead of elected. Retirements caused 14 of the vacancies. Two former justices took jobs in the private sector. One vacancy occurred when a justice was elevated to chief justice of the court, one occurred when a chief justice died, and four vacancies occurred when the justices were elevated to federal judicial positions.

Click here to read more.

Additional reading:
State Supreme Court Vacancies, 2019
State Supreme Court Vacancies, 2020
Kansas Supreme Court
Judicial Selection in Kansas
Kansas Supreme Court, 2020



U.S. Senate confirms 50th nominee to a U.S. Circuit Court judgeship

The U.S. Senate confirmed two nominees to the U.S. Court of Appeals for the 9th Circuit. Overall, the Senate has confirmed 174 of President Trump’s judicial nominees—120 district court judges, 50 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017. At the end of the 115th Congress in January 2019, the Senate had confirmed 85 of the president’s judicial nominees.
The United States Court of Appeals for the 9th Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal court system.
The confirmed nominees were Patrick Bumatay and Lawrence VanDyke. The Senate confirmed Bumatay by a 53-40 vote and VanDyke by a 51-44 vote. Neither nominee received support from their home-state senators.
After they receive their judicial commission, the court will have no vacancies, 16 Democrat-appointed judges, and 13 Republican-appointed judges. This breakdown is consistent with the court’s current levels since Bumatay and VanDyke are succeeding two Republican-appointed judges who did not vacate their seats before the confirmation of their successor.
President Trump has appointed the most judges to the U.S. Courts of Appeal of the past 20 presidents on or before December 1 of their third year in office. The median number of U.S. Courts of Appeal appointees is 19. As of December 1, Trump had appointed 48 nominees to the U.S. Courts of Appeal. President Woodrow Wilson (D) appointed the fewest with five.
Click here to learn more.


SCOTUS releases first opinion of the 2019-2020 term

On December 10, the U.S. Supreme Court released its first opinion of the 2019-2020 term. In Rotkiske v. Klemm, the court affirmed the decision of the U.S. Court of Appeals for the 3rd Circuit, holding that the Fair Debt Collection Practices Act’s (FDCPA) “statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered.” Justice Clarence Thomas wrote the 8-1 opinion. Justice Sonia Sotomayor filed a concurring opinion. Justice Ruth Bader Ginsburg wrote an opinion dissenting in part and dissenting from the judgment. The case was argued on October 16, 2019.
Kevin Rotkiske accumulated credit card debt between 2003 and 2005. His bank referred to Klemm & Associates (Klemm) for collection. In 2009, someone accepted service for a debt collection lawsuit on Rotkiske’s behalf without his knowledge. Klemm obtained a default judgment of approximately $1,500.
Rotkiske discovered the default judgment in 2014. He sued Klemm for violating the FDCPA. Klemm moved to dismiss the claim as untimely. The U.S. District Court for the Eastern District of Pennsylvania granted Klemm’s motion. Rotkiske appealed and the U.S. Court of Appeals for the 3rd Circuit affirmed the district court’s ruling. The 3rd Circuit held Section 1692k(d) of the FDCPA’s “one-year limitations period begins to run when a would-be defendant violates the FDCPA, not when a potential plaintiff discovers or should have discovered the violation.”
In affirming the district court’s ruling, the 3rd Circuit rejected Rotkiske’s argument that the FDCPA incorporates a “discovery rule” that “delays the beginning of a limitations period until the plaintiff knew of or should have known of his injury,” as the 4th Circuit and the 9th Circuit have held. Rotkiske then petitioned the U.S. Supreme Court to review the case, which concluded with this ruling.
Click here to learn more.


U.S. Supreme Court accepts new case about Delaware judicial selection

On December 6, the U.S. Supreme Court agreed to hear the case Carney v. Adams, which concerns judicial selection in Delaware, during its October 2019-2020 term. As of December 9, 2019, the court had agreed to hear 58 cases this term.
As of December 2019, when the governor of Delaware filed a petition before the U.S. Supreme Court, Article IV, Section 3 of the Delaware Constitution required that no more than the bare majority of judges on a given Delaware court could be of the same political party. A bare majority is one where the majority party has a one-seat advantage compared to the minority party. On a five-member court, for example, a bare majority would be a 3-2 majority.
James Adams, a retired lawyer, sued the governor of Delaware in federal district court. Adams argued the state’s bare majority requirement “violate[d] his First Amendment right to be considered for public office without regard to his political affiliation.” The governor, in response, argued Adams did not have the legal right to file a lawsuit. A federal magistrate judge ruled the bare majority requirement was unconstitutional.
The governor appealed to the United States Court of Appeals for the 3rd Circuit. In April 2019, a three-judge panel affirmed in part and reversed in part the federal district court’s ruling. The circuit court ruled that the bare majority provision violated the First Amendment. However, it also ruled Adams did not have the legal right, or standing, to challenge certain sections of Article IV, Section 3.
Governor John Carney (D), acting in his official capacity, filed a petition with the U.S. Supreme Court. In the petition, the governor argued the 3rd Circuit’s ruling conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit. The governor also argued SCOTUS should “reaffirm that federal courts are obligated to respect the States’ sovereign authority to structure their own governments, including by setting qualifications for state judges.”
The issues in this case are: (1) Does the First Amendment invalidate the state’s constitutional bare majority requirement? (2) Was the 3rd Circuit’s ruling in the case incorrect? (3) Does Adams have a demonstrated legal right to sue the government?
Click here to learn more.
Additional reading:


Bold Justice: Twas the night before arguments…

Bold Justice: Twas the night before arguments…

Twas the night before arguments, and all through the court, not a brief was stirring, not even about tort; the robes were hung by the bench with care, in hopes that the justices soon would be there… 

Welcome to the December 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. While you settle your brains for a long winter nap, follow us on Twitter or subscribe to the Daily Brew to catch up on the latest political news.

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court will hear arguments in six cases 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:

December 9

  • In Guerrero-Lasprilla v. Barr, Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported in 1998 after being convicted of aggravated felonies. In 2016, Guerrero-Lasprilla petitioned to reopen his removal proceedings. An immigration judge denied the petition on the grounds it was untimely. The Board of Immigration Appeals denied the appeal. The 5th Circuit Court of Appeals also dismissed the petition for lack of jurisdiction. The case is consolidated with Ovalles v. Barr.

    The issue: (1) Is a request for equitable tolling—in which a plaintiff can bring a claim if they did not discover an injury until after the statute of limitations had expired—judicially reviewable as a “question of law?”

    (2) Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a petitioner lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
  • In Thryv Inc. v. Click-To-Call Technologies, LP, Inforocket.com, Inc. sued Keen, Inc. in 2001 for infringement of U.S. Patent No. 5,818,836 (the “836 Patent”). In 2003, the companies merged and the charges were dropped. The companies later became Dex Media, Inc. In 2011, Click-To-Call Technologies, LP (“CTC”) acquired the 836 Patent. In 2012, CTC filed charges of patent infringement against Dex Media. The Patent Trial and Appeal Board (“Board”) allowed for an inter partes review (IPR) of the patent challenge.

    An IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the Patent Trial and Appeal Board as long as the challenge is filed within a statutory time limit.

    CTC challenged the IPR, arguing it was barred from time limitations under Title 35 U.S.C. § 315(b). The Board rejected CTC’s time bar challenge and ruled in favor of Dex Media. On appeal, the U.S. Court of Appeals for the Federal Circuit issued a split decision vacating the Board’s grant of IPR. Dex Media petitioned the U.S. Supreme Court to review the case. In July 2019, Dex Media changed its name to Thryv, Inc.

    The issue: Whether 35 U.S.C. § 314(d) permits appeal of the Board’s decision to institute an IPR upon finding that § 315(b)’s one-year time bar did not apply.

    Title 35 U.S.C. § 314(d) reads, “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”

December 10

  • In Maine Community Health Options v. United States, as part of Section 1342 of the 2010 Patient Protection and Affordable Care Act (ACA), the federal government established a program to lessen the risk of insurers entering the new health insurance marketplace. Under the program, the government agreed to pay a portion of the costs to insurers who experienced higher-than-expected costs. In 2014, Congress included appropriations riders, or provisions, barring the U.S. Department of Health and Human Services from using its appropriations toward Section 1342 payments.

    Insurer Maine Community Health Options sued the federal government to recover nearly $57 million in unpaid debts. Maine Community Health Options believed the government was legally obligated to pay the debts under Section 1342 of the ACA. On appeal, the U.S. Court of Appeals for the Federal Circuit held the government was not obligated to distribute payments under Section 1342 because of Congress’ appropriations provisions.

    The case was consolidated with Moda Health Plan Inc. v. United States and Land of Lincoln Mutual Health Insurance Co. v. United States.

    The issue: According to Amy Howe from SCOTUSblog, “U.S. Supreme Court precedent disfavors allowing Congress to use appropriations acts to repeal laws by implication. In this case, the court will decide whether an appropriations rider may block an agency from using funds to fulfill a statutory requirement without explicitly repealing that underlying requirement.”

  • In Holguin-Hernandez v. U.S., 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.

    The issue: 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.

December 11

  • Monasky v. Taglieri concerns 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, and Michelle Monasky, an American, 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 issue: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo—without deference to a prior or lower court’s findingsas seven circuits have held; under a deferential version of de novo review, as the First Circuit has held; or under clear-error review, as the Fourth and Sixth Circuits have held.

    (2) Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.
  • In McKinney v. Arizona, James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A federal 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 issue: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

    (2) Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in December:

  • December 9: 
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in two cases.
  • December 10: SCOTUS will hear arguments in two cases.
  • December 11: SCOTUS will hear arguments in two cases.
  • December 13: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

On the Supreme Court’s traditional seal, how many stars are beneath the eagle’s claws?

  1. One
  2. Two
  3. Three
  4. None

Choose an answer to find out!

Federal court action

Confirmations

The Senate has confirmed eight nominees since our December 2 issue.

Overall, the Senate has confirmed 172 of President Trump’s judicial nominees—120 district court judges, 48 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

Nominations

President Trump has not announced any new Article III nominees since our December 2 edition.

The president has announced 234 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.

Judicial nominations by month

Vacancies

The federal judiciary currently has 97 vacancies. As of publication, there were 58 pending nominations.

According to the Administrative Office of U.S. Courts, an additional 18 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 December 2 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.

Court in the spotlight

In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system.

There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.  

In this edition, we’re visiting the U.S. District Court for the District of Delaware. The District of Delaware has original jurisdiction over cases filed in Delaware. Decisions of the court may be appealed to the 3rd Circuit Court of Appeals.

The District of Delaware has four authorized judgeships. There are currently no vacancies. The breakdown of current active judges by appointing president is:

  • Barack Obama (D): Two judges
  • Donald Trump (R): Two judges

Looking ahead

Bold Justice will be back January 6 with more information on the federal judiciary.

… We sprang to the court, where the marshall said “oyez,” and arguments began for the day. But Ballotpedia exclaimed, ere the holidays were in sight, happy SCOTUS to all, and to all a good night!



Washington governor announces supreme court appointment

Washington Governor Jay Inslee (D) appointed Judge Raquel Montoya-Lewis to succeed Chief Justice Mary Fairhurst on the Washington Supreme Court. Fairhurst is retiring on January 5, 2020, for health reasons. Montoya-Lewis is Inslee’s second nominee to the nine-member supreme court.
At the time of her appointment to the state supreme court, Montoya-Lewis was a judge for the Whatcom County Superior Court. Gov. Inslee appointed Montoya-Lewis to this court on December 15, 2014. Before her appointment to that court, Montoya-Lewis served as the chief judge for the Nooksack and Upper Skagit Indian Tribes in Washington. Montoya-Lewis received her undergraduate degree from the University of New Mexico. She received both her master’s degree in social work and her J.D. from the University of Washington. She is an enrolled member of the Pueblo of Isleta and a descendant of the Pueblo of Laguna Indian tribes.
In the event of a midterm vacancy, the governor appoints a replacement to the Washington Supreme Court. The appointee serves until the next general election, at which point he or she may run to serve for the remainder of the predecessor’s term. The nine justices of the supreme court compete in contested elections without reference to party affiliation and must run for re-election when their terms expire. Supreme court justices serve for six years.
Founded in 1889, the Washington Supreme Court is the state’s court of last resort and has nine judgeships. As of December 2019, three of the court’s nine justices were appointed by Democratic governors. The other six were elected by voters.
In 2019, there have been 22 supreme court vacancies across 14 of the 29 states where replacement justices are appointed instead of elected. Retirements caused 14 of the vacancies. Two former justices took jobs in the private sector. One vacancy occurred when a justice was elevated to chief justice of the court, one occurred when a chief justice died, and four others occurred when the justices were elevated to federal judicial positions.
Click here to learn more.
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