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Arguments

The Supreme Court will hear arguments in three 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 21

  • In Shular v. United States, 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, arguing the 11th Circuit was wrong not to have used a categorical approach to interpret “serious drug offenses” under the ACCA and pointed to a circuit split regarding the determination of serious drug offenses under the ACCA.

    Taylor v. United States (1990) required courts to use a categorical approach when applying enhanced sentences by “looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor says courts using a categorical approach must look at the modern generic definition of an offense and then decide if the conviction in question applies to the definition.

    The issue: Whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a “violent felony” under the Act?

  • In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC, Outokumpu Stainless USA LLC (“Outokumpu”) contracted with Fives St. Corp. (“Fives”) to provide equipment for its steel plant in Alabama. Fives subcontracted with GE Energy Power Conversion France SAS (“GE Energy”), a foreign corporation, to supply the equipment. The contracts between Outokumpu and Fives and between Fives and GE Energy contained arbitration clauses.

    The equipment was installed between 2011 and 2012 but failed by 2015. Outokumpu sued GE Energy in Alabama state court. The case was moved to the U.S. District Court for the Southern District of Alabama, which dismissed the case and compelled Outokumpu to undertake arbitration proceedings.

    On appeal, the 11th Circuit Court of Appeals reversed the district court’s decision to compel arbitration. GE Energy appealed to the U.S. Supreme Court for review, arguing the 11th Circuit’s decision underlined a 2-to-2 circuit court split. A circuit split is where circuit courts of appeal offer different rulings on the same legal issue.

  • The issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.

    According to Investopedia, the doctrine of equitable estoppel “prevents someone from arguing something contrary to a claim made or act performed by that person previously.”

• January 22

  • In Espinoza v. Montana Department of Revenue, a 2015 law established a tax credit for taxpayers donating to scholarship organizations for private school students. The law made the Montana Department of Revenue responsible for administering the tax credit and ensuring the credit was constitutional. To ensure compliance, the Department established Rule 1, which excluded students attending religiously-affiliated private schools from receiving scholarship funds.

  • Kendra Espinoza, Jeri Anderson, and Jaime Schaefer, the plaintiffs, challenged Rule 1 in the Montana 11th Judicial District Court, arguing that it violated their First Amendment rights. The 11th Judicial District granted summary judgment to the plaintiffs.

    On appeal, the Montana Supreme Court reversed the 11th Judicial District’s ruling. The plaintiffs appealed to the U.S. Supreme Court, writing that the Montana Supreme Court’s ruling “deepened the long-standing split on whether barring religious options from student-aid programs violates the federal Religion and Equal Protection Clauses.”

    The issue: Does it violate the Religion Clause or Equal Protection Clause of the U.S. Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program gives students the choice to attend religious schools?

Opinions

SCOTUS has ruled on two cases since our January 13 issue. The court has issued rulings in four cases so far this term. Thirty-two cases are still under deliberation.

Click the links below to read more about the specific cases SCOTUS ruled on since January 13:

• January 14, 2020

  • Ritzen Group Inc. v. Jackson Masonry was argued before the court on November 13, 2019.

    The case: Ritzen Group and Jackson Masonry both claimed the other breached contract after a sale of property fell through. A lawsuit Ritzen filed against Jackson in Tennessee state court was stayed after Jackson filed for bankruptcy. Ritzen filed a motion to lift the stay, which the bankruptcy court denied. Ritzen then filed a claim against Jackson in bankruptcy court. The bankruptcy court found Ritzen, not Jackson, breached the contract. On appeal, the district court affirmed the bankruptcy court’s ruling. On appeal again, the 6th Circuit affirmed the judgments of the district court and bankruptcy court.

    The outcome: The U.S. Supreme Court affirmed the ruling of the U.S. Court of Appeals for the 6th Circuit, ruling unanimously that a bankruptcy court’s order unreservedly denying relief from the automatic stay constitutes a final, immediately appealable order under §158(a).

    Justice Ruth Bader Ginsburg delivered the opinion of the court.

  • Retirement Plan Committee of IBM v. Jander was argued before the court on November 6, 2019.The case: Larry Jander invested in IBM’s retirement plan. After IBM sold its microelectronics business at a loss and shares fell, Jander alleged the IBM retirement plan committee violated their fiduciary duty of prudence to the pensioner under the Employee Retirement Income Security Act (ERISA). The U.S. District Court for the Southern District of New York dismissed Jander’s claim. On appeal, the 2nd Circuit reversed and remanded the case. The retirement committee petitioned the U.S. Supreme Court to hear the case, arguing the 2nd Circuit “subverted [a] pleading standard” established in Fifth Third Bancorp v. Dudenhoeffer.

    The outcome: The U.S. Supreme Court vacated and remanded the case in a per curiam decision. A per curiam decision is issued collectively by the court. The authorship is not indicated. Click here for more information.

    Justices Elena Kagan and Ruth Bader Ginsburg filed a joint concurring opinion. Justice Neil Gorsuch also filed a concurring opinion.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in January and February:

• January 21:

  • SCOTUS will release orders.

  • SCOTUS will hear arguments in two cases.

• January 22: SCOTUS will hear arguments in one case.

• January 24: SCOTUS will conference. A conference is a private meeting of the justices.

• January 27: SCOTUS will release orders.

• February 21: SCOTUS will conference.

The federal judiciary under President Trump

President Donald Trump (R) was inaugurated three years ago on January 20, 2017. At the time of his inauguration, there were 108 lifetime federal judicial vacancies requiring a presidential nomination. This was the largest number of federal judicial vacancies at the beginning of a presidency since there were 111 vacancies when Bill Clinton was inaugurated in 1992. Click here for more information on the federal judiciary during Trump’s first term.

Since taking office, the president has nominated 239 individuals to federal judgeships, 187 of whom have been confirmed. The average number of judicial confirmations for the first three years of a presidency through December 31 is 99. The Senate confirmed 197 of President Jimmy Carter‘s (D) judicial nominees, the most confirmations through three years. President Theodore Roosevelt (R) had the fewest confirmed nominees — 23 — at this stage of his first term.

The chart below shows the number of Article III judicial confirmations during each president’s first term at three specific dates: December 31 of the first year, December 31 of the second year, and December 31 of the third year. It includes presidents from Theodore Roosevelt through Trump.

The table below shows the number of Senate-confirmed Article III judges, by court type, for each of the last 20 presidents at the end of their third year in office.

The Senate has confirmed 50 of President Trump’s appellate court nominees, the most on our list. President Woodrow Wilson has the fewest number of appellate confirmations with 5. The median number of appellate court confirmations is 19.

The median number of U.S. District Court confirmations is 67. The Senate confirmed 151 of  President Bill Clinton’s district court nominees, leading the list. President Theodore Roosevelt had the fewest number of district judges confirmed, with 14.

Confirmations

The Senate confirmed no new nominees since our January 13 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 announced one new Article III nominees since our January 13 edition.

• Drew Tipton of Texas to the U.S. District Court for the Southern District of Texas.

The president has announced 239 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 79 vacancies. As of publication, there were 19 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 reported five new nominees out of committee since our January 13 edition.

• Andrew Brasher, nominee for the U.S. District Court for the Middle District of Alabama

• Stephen Vaden, nominee for the U.S. Court of International Trade

• Matthew Schelp, nominee for the U.S. District Court for the Eastern District of Missouri

• Joshua Kindred, nominee for the U.S. District Court for the District of Alaska

• Scott Rash, nominee for the U.S. District Court for the District of Arizona

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

Bold Justice will be back February 10 with more information on the federal judiciary.