On July 2, 2021, the U.S. Supreme Court granted review in 10 cases to be argued during the upcoming October 2021 term:
• Carson v. Makin
• United States v. Taylor
• Cummings v. Premier Rehab Keller, P.L.L.C.
• Hughes v. Northwestern University
• Becerra v. Empire Health Foundation
• CVS Pharmacy, Inc. v. Doe
• Gallardo v. Marstiller
• American Hospital Association v. Becerra
• Pivotal Software, Inc. v. Tran
• Mississippi v. Tennessee
The Supreme Court will begin hearing cases for the term on October 4, 2021. As of July 2, 2021, the court had agreed to hear 31 cases during its October 2021 term. One case was dismissed.
Check out Ballotpedia’s election calendar to see the dates of every election we’ll cover in the next month. If you want to run for office, Ballotpedia also has a calendar with every 2021 filing deadline for election we cover. Interested in only statewide or local election dates in 2021? We have calendars for that, too!
Ballotpedia comprehensively covers all state and federal elections along with the 100 largest cities in the United States by population, the counties and school districts that overlap these cities, and the 200 largest school districts by student enrollment. Our coverage also includes mayors, city councils, and district attorneys in the 32 state capitals that are not already part of our largest cities coverage.
The Supreme Court of the United States (SCOTUS) issued rulings in two cases on July 1. One case—Americans for Prosperity v. Bonta—was argued during the court’s April sitting, while Brnovich v. Democratic National Committee was argued during the court’s March sitting.
In Americans for Prosperity v. Bonta, the Thomas More Law Center and Americans for Prosperity challenged a California policy requirement that tax-exempt §501(c)(3) charitable organizations must disclose the names and addresses of major donors. The groups argued that the policy violated the First Amendment to the U.S. Constitution. On appeal, the U.S. Court of Appeals for the 9th Circuit had ruled in favor of the state. However, in a 6-3 opinion, the U.S. Supreme Court reversed that ruling and remanded the case for further proceedings, holding that the district court was correct in entering judgment in favor of the petitioners and permanently enjoining the California Attorney General from collecting their Schedule B forms. SCOTUS ruled that the Ninth Circuit erred when it vacated those injunctions and directed the entry of judgment for the attorney general. Chief Justice John Roberts delivered the majority opinion of the court. Justice Clarence Thomas filed a concurring opinion. Justice Samuel Alito filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Stephen Breyer and Elena Kagan..
With a 6-3 opinion in Brnovich v. Democratic National Committee, the U.S. Supreme Court reversed the U.S. Court of Appeals for the 9th Circuit’s ruling and remanded the case for further proceedings, holding that Arizona’s out-of-precinct policy and HB 2023 did not violate §2 of the Voting Rights Act, and that HB 2023 was not enacted with a racially discriminatory purpose. Justice Samuel Alito delivered the majority opinion of the court. Justice Neil Gorsuch filed a concurring opinion, joined by Justice Clarence Thomas. Justice Elena Kagan filed a dissenting opinion, joined by Justices Stephen Breyer and Sonia Sotomayor.
The court issued 67 opinions this term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument.
In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from June 1 to July 1. Ballotpedia publishes the federal judicial vacancy count at the start of each month.
HIGHLIGHTS
Vacancies: There have been three new judicial vacancies since the May 2021 report. There are 77 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, 82 of 890 active federal judicial positions are vacant.
Nominations: There were 11 new nominations since the May 2021 report.
Confirmations: There were seven confirmations since the May 2021 report.
New vacancies
There are 77 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.9%.
The nine-member U.S. Supreme Court does not have any vacancies.
Seven (3.9%) of the 179 U.S. Appeals Court positions are vacant.
68 (10.1%) of the 673 U.S. District Court positions are vacant.*
Two (22.2%) of the nine U.S. Court of International Trade positions are vacant.
*District court count does not include territorial courts.
Three judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.
Judge John Dowdell assumed senior status on the U.S. District Court for the Northern District of Oklahoma.
Judge Lydia Kay Griggsby left her seat on the U.S. Court of Federal Claims when she was elevated to the U.S. District Court for the District of Maryland.
Judge Ketanji Brown Jackson left her seat on the U.S. District Court for the District of Columbia when she was elevated to the U.S. Court of Appeals for the District of Columbia 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 Joe Biden (D) 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 Joe Biden (D) and as of July 1, 2021.
New nominations
President Joe Biden (D) has announced 11 new nominations since the May 2021 report.
Toby Heytens, to the United States Court of Appeals for the 4th Circuit
Myrna Pérez, to the United States Court of Appeals for the 2nd Circuit
Jennifer Sung, to the United States Court of Appeals for the 9th Circuit
Jane Beckering, to the United States District Court for the Western District of Michigan
Jia Cobb, to the United States District Court for the District of Columbia
Shalina Kumar, to the United States District Court for the Eastern District of Michigan
Sarah A.L. Merriam, to the United States District Court for the District of Connecticut
Michael Nachmanoff, to the United States District Court for the Eastern District of Virginia
Sarala Nagala, to the United States District Court for the District of Connecticut
Patricia Tolliver Giles, to the United States District Court for the Eastern District of Virginia
Omar A. Williams, to the United States District Court for the District of Connecticut
New confirmations
As of July 1, 2021, the Senate has confirmed seven of President Biden’s judicial nominees—two appeals court judges and five district court judges—since January 2021.
Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit
Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit
Deborah Boardman, to the United States District Court for the District of Maryland
Lydia Kay Griggsby, to the United States District Court for the District of Maryland
Julien Xavier Neals, to the United States District Court for the District of New Jersey
Zahid Quraishi, to the United States District Court for the District of New Jersey
Regina Rodriguez, to the United States District Court for the District of Colorado
The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.
From June 28 through July 2, the Federal Register grew by 1,530 pages for a year-to-date total of 35,382 pages.
The Federal Register hit an all-time high of 95,894 pages in 2016.
This week’s Federal Register featured the following 612 documents:
482 notices
two presidential documents
55 proposed rules
73 final rules
No proposed or final rules were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 21 significant proposed rules and 14 significant final rules as of July 2.
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
The White House Office of Information and Regulatory Affairs (OIRA) reviewed a total of 32 significant regulatory actions issued by federal agencies in June 2021. The agency approved two rules without changes and approved the intent of 29 rules while recommending changes to their content. One rule was withdrawn from the review process.
OIRA reviewed 72 significant regulatory actions in June 2020, 37 significant regulatory actions in June 2019, 40 significant regulatory actions in June 2018, and 18 significant regulatory actions in June 2017. During the Obama administration from 2009-2016, OIRA reviewed an average of 47 significant regulatory actions each June.
OIRA has reviewed a total of 265 significant rules in 2021. The agency reviewed a total of 676 significant rules in 2020, 475 significant rules in 2019, 355 significant rules in 2018, and 237 significant rules in 2017.
As of July 1, 2021, OIRA’s website listed 59 regulatory actions under review.
OIRA is responsible for reviewing and coordinating what it deems to be all significant regulatory actions made by federal agencies, with the exception of independent federal agencies. Significant regulatory actions include agency rules that have had or may have a large impact on the economy, environment, public health, or state and local governments and communities. These regulatory actions may also conflict with other regulations or with the priorities of the president.
President Joe Biden (D) signed three Congressional Review Act (CRA) bills on June 30, reversing three administrative rules implemented near the end of the Donald Trump (R) administration.
Signing these bills brings the total number of rules repealed under the CRA to 20. These CRA bills are also the first Congress has used to reverse regulatory actions taken by a Republican president.
The first bill, S.J.Res.13, reversed a Trump-era Equal Employment Opportunity Commission (EEOC) rule that changed what information the agency would share with companies accused of discrimination. It passed 219-210 in the U.S. House of Representatives with Democrats voting in favor and Republicans voting against it. In the U.S. Senate, the resolution passed 50-48 with 48 Democrats and two independents in favor and 48 Republicans opposed.
The second bill, S.J.Res.14, reversed a Trump-era Environmental Protection Agency (EPA) methane rule and restored methane emissions standards set during the Barack Obama (D) administration. It passed 229-191 in the U.S. House with 217 Democrats and 12 Republicans voting in favor and 191 Republicans voting against it. In the U.S. Senate, the resolution passed 52-42 with 47 Democrats, three Republicans, and two independents voting in favor while 42 Republicans voted against it.
The third bill, S.J.Res.15, reversed a Trump-era U.S. Comptroller of the Currency (OCC) rule that changed regulations governing banks that give money to third-parties to lend to borrowers. It passed 218-208 in the U.S. House with 217 Democrats and one Republican voting in favor and 208 Republicans voting against it. In the U.S. Senate, the resolution passed 52-47 with 47 Democrats, 3 Republicans, and two independents voting in favor while 47 Republicans voted against it.
The Congressional Review Act is a federal law passed in 1996 that creates a 60 day review period during which Congress, by passing a joint resolution of disapproval later signed by the president, can overturn a new federal agency rule.
The law defines days under the CRA as days where Congress is in continuous session, so the estimated window to block any end-of-term regulatory activity from the Trump administration was between Feb. 3, and April 4, 2021. Congress had until then to introduce CRA resolutions to block regulatory activity that occurred between Aug. 20, 2020, and Jan. 3, 2021.
Since the law’s creation in 1996, Congress has used the CRA to successfully repeal 20 rules published in the _Federal Register_. Before 2017, Congress had used the CRA successfully one time, to overturn a rule on ergonomics in the workplace in 2001. In the first four months of his administration, President Donald Trump (R) signed 14 CRA resolutions from Congress undoing a variety of rules issued near the end of Barack Obama’s (D) presidency. Congress ultimately repealed 16 rules in total using the CRA during the Trump administration.
To learn more about the CRA or its use during the Biden administration see here:
President Joe Biden (D) announced his intent to nominate his fifth slate of judicial nominees on June 30, which included six individuals to Article III judgeships with lifetime terms:
• Toby Heytens, to the United States Court of Appeals for the 4th Circuit
• Jennifer Sung, to the United States Court of Appeals for the 9th Circuit
• Jane Beckering, to the United States District Court for the Western District of Michigan
• Patricia Tolliver Giles, to the United States District Court for the Eastern District of Virginia
• Shalina Kumar, to the United States District Court for the Eastern District of Michigan
• Michael Nachmanoff, to the United States District Court for the Eastern District of Virginia
To date, Biden has nominated 30 individuals to federal judgeships. Seven of the nominees have been confirmed. There were 82 Article III vacancies in the federal judiciary as of July 1.
As of his inauguration in January 2021, Biden inherited 46 Article III vacancies: two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy on the U.S. Court of International Trade. Biden announced his first federal judicial nominees on March 30.
Biden’s announcement on June 30 also included two nominees to Article I courts:
• Armando Bonilla, to the United States Court of Federal Claims
• Carolyn Lerner, to the United States Court of Federal Claims
Article I courts are federal courts organized under Article I of the United States Constitution. They are created by Congress and have differing levels of independence from the executive and legislative branches. Examples of Article I courts include the U.S. Tax Court, the U.S. Court of Appeals for the Armed Forces, the Court of Military Commission Review, the U.S. Court of Appeals for Veterans Claims, the U.S. Court of Federal Claims, and the U.S. Bankruptcy Courts.
Biden also announced his intent to nominate one individual to the local D.C. superior court:
• Sean Staples, to the Superior Court of the District of Columbia
Washington, D.C., has two local courts: the superior court—a trial court of general jurisdiction—and a court of appeals. Justices on these courts are nominated by the U.S. president after recommendation from the District of Columbia Judicial Nomination Commission; they then face confirmation by the U.S. Senate. D.C. judges are appointed to 15-year renewable terms.
In this week’s Redistricting Review, we cover news out of Alabama and Colorado.
Alabama: On June 29, a three-judge panel of the U.S. District Court for the Middle District of Alabama rejected an attempt by Alabama state officials to force the U.S. Census Bureau to release redistricting data in advance of August 16, the date by which the Bureau has said it will release the data to the states.
Federal law requires that the Bureau deliver redistricting data to the states by April 1 of the year following a census. However, due to delays in conducting the 2020 census and processing the data, the Bureau announced in early 2021 that it would miss this deadline. The state of Alabama sued the Census Bureau on March 11. In his complaint, Alabama Solicitor General Edmund G. LaCour, Jr., said, “The Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” LaCour also alleged that the U.S. Census Bureau “intends to use a statistical method called differential privacy to intentionally skew the population tabulations given to States to use for redistricting,” thereby “denying Alabama accurate information about where Alabamians actually live.”
LaCour asked the court to issue an order barring application of the differential privacy method and directing the U.S. Census Bureau to deliver data to the states by March 31. A three-judge panel of Judges Kevin Newsom, Emily Marks, and R. Austin Huffaker (all Donald Trump (R) appointees) heard the case.
The court unanimously rejected Alabama’s request: “The court cannot force the Bureau to do the impossible – that is, comply with an already-lapsed deadline. … Furthermore, the Bureau has made quite clear that it will be able to deliver the redistricting data to the State by August 16, 2021. Again, Plaintiffs have acknowledged that date suffices for them to be able to complete redistricting without injury. We see no prejudice to Plaintiffs in denying a writ of mandamus requiring the Bureau to issue the data any earlier.”
Colorado: On June 29, staff of the Colorado Independent Legislative Redistricting Commission released preliminary district maps for the Colorado House of Representatives and the Colorado State Senate. The commission will now conduct at least three public hearings on the proposed maps in each of the state’s current congressional districts. This makes for a total of at least 21 public hearings, all of which must also be broadcast online.
After public hearings are concluded, the commission can take a vote on the preliminary map or ask commission staff to make revisions. In order to enact a map, eight of the commission’s 12 members (including at least two unaffiliated members) must approve of it. The Colorado Supreme Court must also sign off on the map.
The staff of the Colorado Independent Congressional Redistricting Commission released preliminary congressional district maps on June 23.
The Supreme Court of the United States (SCOTUS) issued opinions in three cases on June 29. To date, the court has issued 64 opinions for its 2020-2021 term. Two cases were decided in one consolidated opinion and nine cases were decided without argument. Two cases argued during the term have yet to be decided.
Johnson v. Guzman Chavez (formerly Albence v. Guzman Chavez) concerned the Immigration and Nationality Act of 1952 and the statutory authority under which the government detains immigrants seeking to overturn deportation after a reinstated removal order. The case originated from the U.S. Court of Appeals for the 4th Circuit.
In a 6-3 opinion, the court reversed the decision of the 4th Circuit, holding that 8 U.S.C. § 1231 governs the detention of aliens subject to reinstated orders of removal. Justice Samuel Alito delivered the opinion of the court. Justice Stephen Breyer filed a dissent joined by Justices Sonia Sotomayor and Elena Kagan.
Minerva Surgical Inc. v. Hologic Inc. concerned patent infringement claims and the doctrine of assignor estoppel. The case came from the U.S. Court of Appeals for the Federal Circuit.
In a 5-4 opinion, the court vacated the Federal Circuit’s judgement and remanded the case for further proceedings. It held that the Federal Circuit was right to uphold assignor estoppel, but assignor estoppel applies only when the assignor’s claim of invalidity contradicts explicit or implicit representations they made in assigning the patent. Justice Kagan wrote the majority opinion of the court. Justices Alito and Amy Coney Barrett filed dissenting opinions. Barrett’s dissent was joined by Justices Clarence Thomas and Neil Gorsuch.
PennEast Pipeline Co. v. New Jersey concerned jurisdictional requirements of eminent domain under the Natural Gas Act. The case originated from the U.S. Court of Appeals for the 3rd Circuit.
In a 5-4 opinion, the court reversed the 3rd Circuit’s decision and remanded the case for further proceedings, holding that Section 717f(h) authorizes FERC certificate holders to condemn all necessary rights-of-way, whether owned by private parties or by states. Chief Justice John Roberts delivered the opinion of the court. Justice Gorsuch filed a dissenting opinion, joined by Justice Thomas. Justice Barrett filed a dissenting opinion, joined by Justices Thomas, Kagan, and Gorsuch
