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We #SCOTUS and you can, too!

Arguments

Last week, SCOTUS held its final argument session of the term, hearing an hour of oral argument in one case during a rare May sitting.

During the 2019-2020 term, the Supreme Court heard 10 hours of oral argument in 13 cases during its May argument session. Those cases had been postponed from earlier sittings due to public health recommendations in response to COVID-19. According to SCOTUSblog, the last time the Supreme Court held a full May sitting was during its October 1968 term.

Here’s a breakdown of the hours of oral argument the court heard during each of this term’s argument sessions:

Twelve of the cases heard this term were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Five cases were removed from the argument calendar. Seven cases were decided without argument.

Looking ahead, SCOTUS has accepted 14 cases to its merits docket for the 2021 October Term. Argument dates in those cases are currently pending.

Grants

SCOTUS has not accepted any new cases since our May 3 issue. 

Opinions

SCOTUS has not issued any opinions in cases since our May 3 issue. 

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• May 13: SCOTUS will conference. A conference is a private meeting of the justices.
• May 17: SCOTUS will release orders. 
• May 20: SCOTUS will conference. 
• May 24: SCOTUS will release orders.
• May 27: SCOTUS will conference. 

SCOTUS trivia

True or false: In order to be a Supreme Court justice, one must be a lawyer or a law school graduate.

1. True
2. False

Choose an answer to find out!

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from April 1 to May 1. 

Highlights

• Vacancies: There have been six new judicial vacancies since the March 2021 report. There are 75 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, 79 of 890 active federal judicial positions are vacant.
• Nominations: There were 3 new nominations since the March 2021 report. 
• Confirmations: There have been no new confirmations since the March 2021 report.

Vacancy count for May 1, 2021

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

Six judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, the president nominates individuals to fill the vacancies. Nominations are subject to U.S. Senate confirmation.

• Judge Catherine Blake assumed senior status on the U.S. District Court for the District of Maryland.
• Judge Emmet Sullivan assumed senior status on the U.S. District Court for the District of Columbia.
• Judge Amy Totenberg assumed senior status on the U.S. District Court for the Northern District of Georgia.
• Judge Timothy Stanceu assumed senior status on the U.S. Court of International Trade.
• Judge Colleen McMahon assumed senior status on the U.S. District Court for the Southern District of New York.
• Judge George Daniels assumed senior status on the U.S. District Court for the Southern District of New York.

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.

U.S. District Court vacancies

The following map shows the number of vacancies in the United States District Courts as of May 1, 2021.

New nominations

President Joe Biden (D) announced three new nominations since the March 2021 report.

• Christine O’Hearn, to the U.S. District Court for the District of New Jersey
• David G. Estudillo, to the U.S. District Court for the Western District of Washington
• Tana Lin, to the U.S. District Court for the Western District of Washington

New confirmations

As of May 1, 2021, there have been no federal judicial confirmations during the Biden administration.

As of May 1 of the first year of President Donald Trump’s (R) presidency, the U.S. Senate had confirmed one of Trump’s Article III judicial nominees–U.S. Supreme Court Justice Neil Gorsuch.

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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Through the sands of time, some bead curtains, and hopefully some Motown records, the time has come today! We continue our time-journey by stopping over at an era known as November 1963 through January 1969. Today’s edition of Bold Justice highlights President Lyndon Baines Johnson’s (D) federal judicial nominees.

While serving in the White House, President Johnson nominated 180 individuals to Article III judgeships who were confirmed to the bench. Among the most notable appointees were Supreme Court Justices Abe Fortas and Thurgood Marshall. Fortas was nominated and commissioned in 1965. Marshall was nominated and commissioned in 1967. 

President Johnson made his first successful Article III appointments by April 1 of his first year in office–three nominees were confirmed to U.S. district courts. By the end of his first year in office, 21 of Johnson’s nominees had been confirmed. Throughout his tenure as president, Johnson averaged 34.1 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.  

Of his Article III appointees–not including Supreme Court nominations–President Johnson appointed 44 judges to the United States Courts of Appeal, 126 judges to U.S. district courts, and eight judges to the U.S. Court of International Trade. 

Looking ahead

We’ll be back on June 7 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Brittony Maag, Jace Lington, and Sara Reynolds.

We #SCOTUS and you can, too!

April sitting

The Supreme Court will conclude its April sitting this week, hearing arguments in seven cases for a total of six hours. 

The court will hear arguments via teleconference and will provide live audio streams to the public for each of the argument sessions. The court has not heard arguments in person during the 2020 term. 

Click the links below to read more about the specific cases before SCOTUS during the first week of its April sitting.

April 26

• A pair of consolidated cases, Americans for Prosperity v. Becerra and Thomas More Law Center v. Becerra, concern disclosure requirements for charitable organizations’ donor lists and the Supreme Court’s decision in NAACP v. Alabama (1958). The NAACP ruling set legal precedent over membership disclosure requirements for charity groups and constitutional protections for freedom of association. 

Two conservative political advocacy groups, the Thomas More Law Center and the Americans for Prosperity Foundation, challenged a California law requiring tax-exempt §501(c)(3) charitable organizations to disclose the names and addresses of major donors. The groups argued the policy violates the First Amendment. On appeal, the U.S. Court of Appeals for the 9th Circuit ruled in favor of the state, holding that California had a compelling state interest in donor disclosure and that the groups already filed the information with their federal tax returns. The two advocacy groups petitioned the Supreme Court for review. 

• The case Guam v. United States concerns a CERCLA claim and whether Guam or the U.S. Navy is financially responsible for the environmental hazards arising from the Ordot Dump, a public landfill. CERCLA is the Comprehensive Environmental Response, Compensation, and Liability Act, which gave the Environmental Protection Agency (EPA) the power to regulate hazardous substances at contaminated waste sites. 

In the 1940s, the U.S. Navy built and operated the Ordot Dump landfill in Guam for the disposal of munitions, chemicals, and garbage. The landfill had no environmental safeguards. When Guam gained sovereignty in 1950, the Navy ceased to own or operate the landfill. In the 1980s, the EPA flagged the Ordot Dump as a contaminated site, ordered Guam to create containment plans, and determined the Navy was a potentially responsible party for the site.

In 2004, the EPA reached an agreement with Guam to close and cover the dump to prevent further pollution. In 2017, Guam filed CERCLA complaints in U.S. district court against the United States, seeking financial support for closing the dump and paying the civil penalties levied by the EPA. The United States argued Guam could not file CERCLA claims because of the terms of its agreement with the EPA and moved to dismiss the case. The district court denied the request. The U.S. government appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The court reversed the district court’s ruling and remanded the case back to the lower court for dismissal. The government of Guam appealed to the U.S. Supreme Court.

April 27

• The case HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association concerns Clean Air Act exemptions and whether a small refinery can qualify for a hardship exemption from the renewable fuel standard program if it has not received continuous hardship exemptions for every year since 2011.

The Clean Air Act‘s biofuels mandate to replace crude oil with renewable fuels allows the Environmental Protection Agency (EPA) to temporarily extend exemptions to small refineries if compliance with the law would cause disproportionate economic hardship. Three small refineries, collectively known as HollyFrontier, applied for and received extensions. A group of renewable fuels producers, collectively known as the Renewable Fuels Association, challenged the orders with the U.S. Court of Appeals for the 10th Circuit. The Renewable Fuels Association claimed the EPA’s orders caused economic injury. The 10th Circuit vacated the EPA’s orders and remanded the matters, ruling that the EPA had exceeded its authority. HollyFrontier petitioned SCOTUS for review.

• The case United States v. Palomar-Santiago concerns removable offenses and the validity of removal orders under U.S. immigration law. 

Mexican national Refugio Palomar-Santiago was granted permanent residency in the United States in 1990. The following year, he was convicted of a felony offense and was later deported based on that conviction. Three years later, the U.S. Court of Appeals for the 9th Circuit concluded that Palomar-Santiago’s conviction was not a crime of violence, and as such did not warrant deportation proceedings. 

In 2017, Palomar-Santiago was in the United States and was indicted for illegally reentering the country. Palomar-Santiago moved to dismiss the indictment, based on the 9th Circuit’s ruling. The district court ruled he met the required burden of proof and dismissed the indictment. On appeal, the 9th Circuit affirmed the ruling. The U.S. government appealed to the Supreme Court.

April 28

• Mahanoy Area School District v. B.L. concerns Title 42 of the United States Code and whether Tinker v. Des Moines Independent Community School District applies to students’ off-campus speech. In Tinker, SCOTUS ruled students did not lose their free speech protections on campus and public school officials may regulate speech that would materially and substantially disrupt the school.

Mahanoy Area School District student B.L. was suspended from the school’s cheerleading team after posting a Snapchat story coaches said violated team and school rules. Snapchat is a social media platform that allows users to send private messages to other users. Snaps are temporary, disappearing after an interval of time, and cannot be accessed on the internet. The posts were made off campus.

School officials upheld the coaches’ ruling while stating that B.L. could try out for the team again the following school year. B.L. sued the school in U.S. district court, claiming the school had violated her First Amendment rights in its attempts to regulate her off-campus speech and discipline her for that speech. The district court ruled in her favor and on appeal, the U.S. Court of Appeals for the 3rd Circuit upheld the ruling. The school district appealed to the Supreme Court.

• The case PennEast Pipeline Co. v. New Jersey concerns jurisdictional requirements of eminent domain under the Natural Gas Act (“NGA”). Eminent domain is the prerogative of a government to take private property, including land, for public use with payment of reasonable compensation without the owner’s consent. The NGA allows private gas companies to exercise the U.S. government’s power of eminent domain if certain jurisdictional requirements are met. 

Natural gas provider PennEast Pipeline Company (“PennEast”) was scheduled to build a pipeline through part of New Jersey. PennEast obtained federal approval and sued for access to the properties in U.S. district court. New Jersey sought to dismiss the suits, arguing that PennEast did not satisfy the NGA’s jurisdictional requirements and the state was immune under the Eleventh Amendment. The District of New Jersey allowed PennEast immediate access to the properties. New Jersey appealed to the U.S. Court of Appeals for the 3rd Circuit, which ruled that New Jersey was immune and vacated the district court’s orders. PennEast appealed the ruling to the Supreme Court.

Opinions

SCOTUS issued opinions in three cases since our April 19 issue. The court has issued 30 opinions to date. Six cases were decided without argument.

• Jones v. Mississippi originated from the Mississippi Court of Appeals and was argued before SCOTUS on November 3, 2020. The case concerned sentencing juveniles to life imprisonment without parole.

When he was 15 years old, Brett Jones killed his grandfather and was tried for murder in the Circuit Court of Lee County, Mississippi. He was convicted and sentenced to life imprisonment without parole. Following the U.S. Supreme Court’s decision in Miller v. Alabama (2012), the Mississippi Supreme Court ordered the county circuit court to hold a sentencing rehearing. In 2017, the circuit court resentenced Jones to life in prison without parole. Brett appealed to the Mississippi Court of Appeals, the state’s intermediate appellate court, which rejected his argument to reverse the sentence. In 2018, the state supreme court held oral arguments and then dismissed the case. 

In 2019, Jones petitioned the U.S. Supreme Court for review. In the petition, Brett argued (1) that the issue divided state supreme courts, and (2) that without a requirement to find permanent incorrigibility before sentencing juveniles to life imprisonment without parole, SCOTUS’ precedent in Miller and Montgomery would “lose its force as a rule of law.” Incorrigibility in this case is defined as when a juvenile does not accept an adult’s authority.

On April 22, 2021, SCOTUS ruled in a 6-3 vote that the Eighth Amendment to the U.S. Constitution does not require a juvenile to be found as permanently incorrigible before imposing a life sentence without parole. The court upheld the Mississippi Court of Appeals’ judgment. Justice Brett Kavanaugh delivered the court’s majority opinion. Justice Sonia Sotomayor dissented and was joined by Justices Stephen Breyer and Elena Kagan.

• Carr v. Saul (consolidated with Davis v. Saul) concerns claimants seeking disability benefits under the Social Security Act (The Act) and whether they must raise any constitutional Appointments Clause challenges during administrative proceedings before seeking judicial review. The case was argued before SCOTUS on March 3, 2021. 

Willie Carr was denied Social Security disability benefits, appealed to the Social Security Administration (SSA), and those appeals were denied. Carr petitioned the U.S. District Court for the Northern District of Oklahoma for review. Carr claimed the administrative law judge (ALJ) who decided his case was unconstitutionally appointed. The SSA did not dispute Carr’s claim. The SSA argued Carr’s claim should’ve been raised during the earlier administrative proceedings, so the court could not consider his challenge. The Northern District of Oklahoma ruled in Carr’s favor. The SSA appealed to the U.S. Court of Appeals for the 10th Circuit. The 10th Circuit reversed the district court, holding that Carr could not challenge the ALJ’s appointment for the first time in federal court.

On April 22, 2021, SCOTUS issued a unanimous opinion reversing the 10th Circuit ruling and remanding the case for further proceedings. The court held that Social Security disability claimants are not required to make Appointments Clause challenges relating to the ALJs hearing their claims at the agency level. Justice Sonia Sotomayor authored the court’s majority opinion. Justice Clarence Thomas filed an opinion concurring in part and concurring in the judgment, in which Justices Neil Gorsuch and Amy Coney Barrett joined. Justice Stephen Breyer filed an opinion concurring in part and concurring in the judgment.

• AMG Capital Management, LLC v. Federal Trade Commission was argued before the court on January 13, 2021, and concerned the Federal Trade Commission Act (“The Act”) and whether it authorizes the Federal Trade Commission (FTC) to demand monetary restitution. 

In 2012, the FTC filed a suit in the U.S. District Court for the District of Nevada against business owner Scott Tucker and his credit-monitoring companies for violating consumer-protection statutes under The Act. The District of Nevada granted summary judgment in favor of the FTC and ordered Tucker to pay restitution. On appeal in 2018, the U.S. Court of Appeals for the 9th Circuit upheld the district court’s ruling. In 2019, Tucker petitioned SCOTUS for review.

On April 22, 2021, the U.S. Supreme Court issued a unanimous opinion reversing the 9th Circuit’s judgment and remanding the case for further proceedings. The court concluded that Section 13b of The Act does not authorize the FTC to seek equitable monetary relief like restitution or disgorgement, nor does it authorize a court to award such relief. Justice Stephen Breyer delivered the majority opinion of the court.

Grants

SCOTUS accepted one case to its merits docket since our April 19 issue. The court has granted review in a total of 11 cases for the upcoming 2021-2022 term, which is scheduled to begin on October 4, 2021. 

Hemphill v. New York originated from the New York Court of Appeals.

• The case: Darrell Hemphill was tried in New York state court for second-degree murder in the shooting death of a child. At trial, Hemphill’s attorney introduced evidence of a different shooter. The court ruled that this defense opened the door to the prosecution presenting rebuttal evidence, including testimony provided during earlier legal proceedings barred by the Sixth Amendment’s Confrontation Clause. In practice, this clause requires criminal prosecutors to offer their evidence at trial through witnesses who are subject to cross-examination. Hemphill was convicted. 

After exhausting his appeals in the New York state courts, Hemphill appealed on constitutional grounds to the U.S. Supreme Court. Click here to learn more about the case’s background.

• The issue: The case concerns a criminal defendant’s constitutional right to confront the witnesses against him.

• The question presented: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• April 26:
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in three cases.
• April 27: SCOTUS will hear arguments in two cases.
• April 28: SCOTUS will hear arguments in two cases.
• April 30: SCOTUS will conference. A conference is a private meeting of the justices.
• May 3: SCOTUS will release orders
• May 4: SCOTUS will hear arguments in one case.

SCOTUS trivia

True or false: has a Supreme Court Justice ever been impeached from the court?

1. True
2. False

Choose an answer to find out!

Federal court action

Nominations and confirmations

President Joe Biden (D) announced no new nominees and the U.S. Senate has confirmed no new nominees since our April 19 issue.

To date, President Biden has nominated 10 individuals to Article III judgeships:

• Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit
• Tiffany Cunningham, to the United States Court of Appeals for the Federal Circuit
• Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit
• Regina Rodriguez, to the United States District Court for the District of Colorado
• Florence Pan, to the United States District Court for the District of Columbia
• 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
• Margaret Strickland, to the United States District Court for the District of New Mexico

The nominations were announced on March 30 and were officially submitted to the U.S. Senate on April 19.  

Vacancies

The federal judiciary currently has 77 vacancies, 73 of which are for lifetime Article III judgeships. As of this writing, there were 10 pending Article III nominations.

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

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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

The nation’s bicentennial. The invention of the digital camera. The landslide brought us down. These happenings took place between 1974 and 1977 during the Ford Administration. This week’s edition of Bold Justice takes us back to that time to highlight President Gerald Ford’s (R) judicial nominees.

During his term in office, President Ford had 62 judges successfully nominated and confirmed to Article III judgeships. He had one nomination withdrawn and the U.S. Senate did not vote on 12 of nominees. Ford made one appointment to the Supreme Court, Justice John Paul Stevens in 1975. Stevens served on the court until June 28, 2010. 

President Ford’s first Article III nominees–12 U.S. district court judges and two U.S. circuit court judges–were confirmed as of January 1 of his second year in office. 

Of his Article III appointees, President Ford appointed 12 judges to the United States Courts of Appeal and 50 judges to U.S. district courts. He averaged 21 judicial appointments per year during his term in office.

Looking ahead

We’ll be back on May 3 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Brittony Maag, Jace Lington, and Sara Reynolds.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

• Arizona (Republican trifecta): 
  • Gov. Doug Ducey (R) ended the executive order requiring masks on all K-12 school campuses. 
  • Ducey also signed an order prohibiting all state and local government agencies from requiring individuals to provide their vaccination status to access facilities and services. Private businesses can still require proof of vaccination as a condition of service or entry.

• Connecticut (Democratic trifecta): 
  • Gov. Ned Lamont (D) announced outdoor business restrictions will be lifted May 1. The seating limit of eight people per table will end and alcohol sales without food will be permitted outside. Indoor and outdoor businesses subject to the 11 p.m. curfew (including bars and restaurants) will be able to stay open until midnight each night.
  • All remaining business restrictions will end May 19, including movie theater capacity limits. Limits on outdoor gatherings will also end. Some individual restrictions like the indoor public mask requirement will remain in place. 

• West Virginia (Republican trifecta): On Monday, April 19, Gov. Jim Justice (R) issued an executive order clarifying which COVID-19 orders are still in effect and updating some restrictions. For example, Justice removed the limit on social gatherings and amended the statewide indoor mask requirement to no longer require people engaged in activities like sports to wear a face covering. 

• Wisconsin (divided government): On Tuesday, April 20, Gov. Tony Evers (D) announced $175 million for COVID-19 testing in schools. The Department of Health Services and the Department of Public Instruction will use the funds to develop a statewide testing program.

Vaccine eligibility

As of April 19, all 50 states and Washington, D.C., allowed all residents 16 and older to receive a coronavirus vaccine. Alaska was the first state to offer vaccines to all residents 16+ on March 9. Hawaii, Massachusetts, New Jersey, Oregon, Rhode Island, and Vermont were the last states to expand eligibility on April 19. 

The chart below shows the cumulative number of states with 16+ vaccine eligibility between March 9 and April 19 by the governor’s party. 

Lawsuits about state actions and policies

Read more: Lawsuits about state actions and policies in response to the coronavirus (COVID-19) pandemic, 2020

Overview:

• To date, Ballotpedia has tracked 1,767 lawsuits, in 50 states, dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 531 of those lawsuits. 
  • Since April 13, we have added seven lawsuits to our database. We have also tracked an additional three court orders and/or settlements. 

Details:

• Catchings v. Wilson: On April 15, Maryland officials reached a settlement with detainees of Baltimore’s Chesapeake Detention Facility, establishing COVID-19 safety protocols and a vaccination schedule for the prison. In their complaint, filed in the U.S. District Court for the District of Maryland, the detainees sued Warden Calvin Wilson and Robert Green, secretary of Maryland’s Department of Public Safety and Correctional Services (MDPSCS), alleging that official inaction had led to a COVID-19 outbreak at the facility. Under the settlement, the Maryland Department of Public Safety and Correctional Services will provide educational materials on COVID-19, enforce mask-wearing and social distancing among staff and inmates, enact sanitization protocols for common areas “in full compliance with CDC guidelines,” and “ensure that all detainees/residents, staff, and contracted staff” are tested for COVID-19 weekly. The defendants will isolate and quarantine inmates who test positive, and the Chesapeake Detention Facility agreed to provide COVID-19 vaccines to all detainees and staff by May 1. Plaintiff counsel John Fowler with the Lawyers’ Committee for Civil Rights Under Law said, “This settlement is a huge victory that is going to save lives.” MDPSCS representative Mark Vernarelli said the settlement “reinforces the Department’s long-standing commitment to protecting its employees and the incarcerated men and women.” The settlement will remain in force for 180 days after the state’s COVID-19 emergency ends.

State mask requirements

We last looked at face coverings in the April 13 edition of the newsletter. Since then, New Hampshire’s statewide public face-covering requirement expired.

Diagnosed or quarantined politicians identified by Ballotpedia

Read more: Politicians, candidates, and government officials diagnosed with or quarantined due to the coronavirus (COVID-19) pandemic, 2020

• Federal
  • Three federal officials have died of COVID-19.
  • Sixty-five members of Congress have been diagnosed with COVID-19.
  • Forty-one federal officials have quarantined after possible exposure to COVID-19.
• State
  • Ten state-level incumbents or candidates have died of COVID-19.
  • Two hundred twenty-eight state-level incumbents or candidates have been diagnosed with COVID-19.
  • Eighty-six state-level incumbents or candidates have quarantined after possible exposure to COVID-19.
• Local
  • At least five local incumbents or candidates have died of COVID-19.
  • At least 42 local incumbents or candidates have been diagnosed with COVID-19.
  • At least 26 local incumbents or candidates have quarantined after possible exposure to COVID-19.

Since April 13, two state senators and one state representative have tested positive for COVID-19.

Details:

• On April 14, Wisconsin state Sen. Chris Larson (D) announced he tested positive for COVID-19. 
• On April 14, Illinois state Sen. Kimberly Lightford (D) announced she tested positive for COVID-19. 
• On April 15, Pennsylvania state Rep. Bryan Cutler (R) announced he tested positive for COVID-19. 

This time last year: Tuesday, April 21, 2020

The first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020. But it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout March and April, many states issued stay-at-home orders, closed schools, restricted travel, and changed election dates. Many of those policies remain in place today. Each week, we’ll look back at some of the defining policy responses of the early coronavirus pandemic.

Here’s what happened this time last year. To see a list of all policy changes in each category, click the links below.

Tuesday, April 21, 2020:

• Travel restrictions: 
  • Alaska Gov. Mike Dunleavy (R) extended the 14-day quarantine requirement for international and out-of-state travelers through May 19.

• School closures:
  • Colorado Gov. Jared Polis (D) announced public and private schools would not reopen for in-person instruction for the rest of the academic year. Before the announcement, schools were closed through April 30.
  • Massachusetts Gov. Charlie Baker (R) announced public and private schools would not reopen for in-person instruction for the rest of the academic year. Before the announcement, schools were closed through May 1.
  • West Virginia Gov. Jim Justice (R) announced public and private schools would not reopen for in-person instruction for the rest of the academic year. Before the announcement, schools were closed through April 30.

• Federal government responses:
  • The U.S. Senate passed the $484 billion Paycheck Protection and Health Care Act. The package included renewed funding for the Paycheck Protection Program (PPP) and funding for hospitals and testing.

We #SCOTUS and you can, too!

April sitting

The Supreme Court begins its April sitting the week of April 19. The court will hear arguments via teleconference and will provide live audio streams to the public for each of the argument sessions. The court has not heard arguments in person during the 2020 term. SCOTUS will hear arguments in seven cases for a total of six hours. 

Click the links below to read more about the specific cases before SCOTUS during the first week of its April sitting.

April 19

• Yellen v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation) originated from the U.S. Court of Appeals for the District of Columbia Circuit. The consolidated cases concern Alaska Native corporations and whether they qualify for Coronavirus Aid, Relief, and Economic Security (CARES) Act payments. 

The question presented: “Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the CARES Act, 42 U.S.C. 801(g)(1).”

Note: When SCOTUS originally accepted the case, the case name was Mnuchin v. Confederated Tribes of the Chehalis Reservation, because Steven Mnuchin was the U.S. Secretary of the Treasury at that time.

• Sanchez v. Mayorkas is a case concerning grants of Temporary Protected Status (TPS) to non-citizens. U.S. Citizenship and Immigration Services (USCIS) granted and later re-granted TPS to El Salvadoran citizens and married couple José Sanchez and Sonia Gonzalez. Sanchez and Gonzalez filed for permanent resident status. USCIS denied their applications, saying TPS did not make them eligible for permanent residence. Sanchez and Gonzalez challenged the determination in U.S. district court and were awarded summary judgment. USCIS appealed to the U.S. Court of Appeals for the 3rd Circuit, which reversed the district court’s ruling.

The question presented: “Whether, under 8 U.S.C. § 1254a(f)(4), a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. §1255.”

Note: When SCOTUS originally accepted the case, the case name was Sanchez v. Wolf, because Chad Wolf was the acting secretary of the U.S. Department of Homeland Security at that time.

April 20

• Greer v. United States concerns Title 18 of the United States Code, prohibiting a convicted felon from possessing a firearm and ammunition, and the Supreme Court’s decision in Rehaif v. United States. 

In 2018, Gregory Greer was convicted of possession of a firearm, a felony offense. Greer appealed to the U.S. Court of Appeals for the 11th Circuit, arguing that the law was unconstitutional, based on the U.S. Supreme Court’s decision in Rehaif. In Rehaif, the court held that in order to convict an individual of unlawful possession of a firearm, prosecutors must prove the individual knew they possessed a firearm and knew they were barred from doing so.

The 11th Circuit affirmed the conviction. Greer appealed to the Supreme Court. SCOTUS vacated the 11th Circuit’s ruling and remanded the case for reconsideration in light of Rehaif. On remand, the 11th Circuit affirmed Greer’s conviction, holding that unlike the plaintiff in Rehaif, Greer knew he was a felon when he possessed the firearm and therefore could not establish that any errors during the district court proceedings affected his substantial rights.

The question presented: “Whether when applying plain-error review based upon an intervening United States Supreme Court decision, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity, or public reputation of the trial?”

• United States v. Gary concerns plain-error review of a court’s decision and the Supreme Court’s decision in Rehaif v. United States.

In 2017, Michael Andrew Gary was arrested twice for felony possession of a firearm by a convicted felon. Gary was indicted in U.S. district court for the offenses under Title 18 of the United States Code and he pled guilty. During his plea hearing, Gary’s legal counsel did not tell Gary that an additional element of the offense was that he possessed the firearm while knowing he was prohibited from doing so. Gary appealed his sentence to the U.S. Court of Appeals for the 4th Circuit and the court vacated his plea and convictions. The United States petitioned the court for a rehearing and the 4th Circuit denied the request.

The question presented: “Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.”

April 21

• City of San Antonio, Texas v. Hotels.com, L.P. concerns Rule 39 of the Federal Rules for Appellate Procedure and a class action lawsuit. 

A class of 173 Texas municipalities filed a lawsuit against several online travel companies (“OTCs”) alleging that the OTCs had not paid and/or had underpaid municipal taxes emanating from the OTCs’ service fees. 

In separate but similar litigation, a U.S. district court held that the OTCs retail rate was subject to hotel occupancy tax. A state court held that the hotel occupancy tax only applies to the discounted room rate that the OTC pays to the hotel. 

On appeal from the U.S. district court, the U.S. Court of Appeals for the 5th Circuit ruled in favor of the OTCs, concluding that the state court’s decision in the separate case was correct. The OTCs filed a bill of costs with the class of municipalities. The municipalities asked the district court to refuse or reduce the amount owed. The district court ruled that it lacked the authority to alter the costs. The municipalities appealed to the 5th Circuit. The 5th Circuit affirmed the district court’s conclusion.

The question presented: “Whether, as the Fifth Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Fed. R. App. P. 39(e).”

• Minerva Surgical Inc. v. Hologic Inc. concerns patent infringement claims and the doctrine of assignor estoppel. The doctrine of assignor estoppel prevents a party that assigns a patent to a new party from later challenging the validity of that patent in U.S. district court.

Csaba Truckai was listed as an inventor on two patents related to endometrial ablation procedures and devices that he later assigned to the company he co-founded, Novacept. Later, Hologic acquired Novacept and the company inherited the patents’ interests. Truckai left the company and co-founded Minerva Surgical. At Minerva, he developed a new endometrial ablation product. 

Hologic filed patent infringement claims against Minerva in U.S. district court. Minerva filed review claims for the patents with the U.S. Patent and Trademark Office. The office found that one patent was not patentable, meaning that the invention could not be patented, and the U.S. Court of Appeals for the Federal Circuit upheld the ruling. Hologic argued Minerva could not challenge the claims’ validity based on the doctrine of assignor estoppel. Both parties cross-appealed to the Federal Circuit. The court affirmed-in-part and vacated-in-part the U.S. district court’s orders.

The question presented: “Whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.”

Opinions

SCOTUS has not issued any opinions in cases argued this term since our April 12 issue. The court has issued 26 opinions to date. Five cases were decided without argument.

Grants

SCOTUS has not accepted any new cases since our April 12 issue. The court has granted review in a total of 10 cases for the 2021-2022 term, which is scheduled to begin on October 4, 2021. 

Noteworthy court announcements

On April 9, SCOTUS blocked California from enforcing restrictions on in-home religious gatherings that were originally imposed due to the coronavirus pandemic in the case Tandon v. Newsom. Justice Elena Kagan wrote a dissenting opinion, joined by Justices Stephen Breyer and Sonia Sotomayor, concluding that because the California law treated both secular and religious in-home gatherings equally, the injunction should be denied.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• April 19: 
  • SCOTUS will release orders
  • SCOTUS hear arguments in three cases.
• April 20: SCOTUS will hear arguments in two cases.
• April 21: SCOTUS will hear arguments in two cases.
• April 23: SCOTUS will conference. A conference is a private meeting of the justices.
• April 26:
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in three cases.
• April 27: SCOTUS will hear arguments in two cases.
• April 28: SCOTUS will hear arguments in two cases.
• April 30: SCOTUS will conference. 

SCOTUS trivia

SCOTUS has nine active justices–eight associate justices and one chief justice. How many chief and associate justices have there been in the court’s history?

1. 17 chief justices, 200 associate justices
2. 17 chief justices, 103 associate justices
3. 22 chief justices, 111 associate justices
4. 18 chief justices, 103 associate justices

Choose an answer to find out!

Federal court action

Nominations and confirmations

President Joe Biden (D) announced no new nominees and the U.S. Senate has confirmed no new nominees since our April 12 issue.

To date, President Biden has announced his intent to nominate 10 individuals to Article III judgeships.

• Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit
• Tiffany Cunningham, to the United States Court of Appeals for the Federal Circuit
• Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit
• Regina Rodriguez, to the United States District Court for the District of Colorado
• Florence Pan, to the United States District Court for the District of Columbia
• 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
• Margaret Strickland, to the United States District Court for the District of New Mexico

The official nominations of these judges have not been submitted to the U.S. Senate as of this writing.

In comparison to previous presidential administrations, Presidents Donald Trump (R) and George H.W. Bush (R) made their first successful Article III judicial appointments by June 1 of the first year of their presidencies. Presidents George W. Bush (R) and Ronald Reagan (R) made their first appointments by August 1, and Presidents Barack Obama (D) and Bill Clinton (D) made their first Article III judicial appointments by October 1 of their first years in office. These figures do not include appointments to the U.S. Supreme Court.

Vacancies

The federal judiciary currently has 77 vacancies, 73 of which are for lifetime Article III judgeships. As of this writing, there were 10 pending Article III nominations.

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

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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

It’s time to feather our hair and put on our boogie shoes because we’ve crossed into the 1970s! Before you tune into Weekend Update with Jane Curtin or put on Star Wars (The Empire Strikes Back, of course), let’s take a look at President Jimmy Carter’s (D) judicial nominees.

During his term in office, President Carter made 262 successful judicial appointments where the nominee was confirmed to their relevant court. Of those appointments, 259 were Article III judges. Carter made no nominations to the Supreme Court.

Of his Article III appointees Carter appointed 56 judges to the United States Courts of Appeal and 203 judges to U.S. district courts.

President Carter made the most judicial appointments relative to his tenure in the White House. He averaged 65.5 judicial appointments per year during his one term in office.

We #SCOTUS and you can, too!

April sitting

The Supreme Court will begin its April argument session next week, hearing cases remotely and streaming live argument audio to the public. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19.

The court will hear arguments in the following cases:

April 19

• Yellen v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation)
• Sanchez v. Mayorkas

April 20

• Greer v. United States
• United States v. Gary

April 21

• City of San Antonio, Texas v. Hotels.com, L.P.
• Minerva Surgical Inc. v. Hologic Inc.

Grants

SCOTUS accepted two cases since our March 29 issue for a total of two hours of oral argument. Both cases originated from the U.S. Court of Appeals for the 6th Circuit. The 6th Circuit holds jurisdiction over Kentucky, Michigan, Ohio, and Tennessee.

The cases will be scheduled for argument during the court’s 2021-2022 October term, which begins on October 4, 2021. To date, the court has accepted 10 cases for the term. 

• Cameron v. EMW Women’s Surgical Center, P.S.C. concerns whether a state official may intervene in a case to defend a state law that has been invalidated and Fourteenth Amendment protections of a woman’s right to choose whether to have an abortion. 
• Brown v. Davenport concerns the standard necessary to grant federal habeas relief to a person held in state custody. U.S. federal courts can use writs of habeas corpus to determine if a state’s detention of a prisoner is valid. 

Opinions

SCOTUS issued five opinions since our March 29 issue. The court has issued 26 opinions so far this term. Five cases were decided without argument.

March 29

• Mays v. Hines (Decided without argument)
  • In an 8-1 per curiam ruling, the 6th Circuit ruling was reversed.

April 1

• Florida v. Georgia
  • In a unanimous decision, the court dismissed the case. Justice Amy Coney Barrett wrote the majority opinion.
• FCC v. Prometheus Radio Project (Consolidated with National Association of Broadcasters v. Prometheus Radio Project)
  • The court ruled unanimously to reverse the 3rd Circuit’s judgment. Justice Brett Kavanaugh delivered the court’s majority opinion. 
• Facebook v. Duguid
  • The court reversed the 9th Circuit’s ruling and remanded the case for further proceedings in a unanimous decision. Justice Sonia Sotomayor wrote the majority opinion.

April 5

• Google LLC v. Oracle America Inc.
  • In a 6-2 vote, the court reversed the Federal Circuit’s ruling and remanded the case for further proceedings. Justice Stephen Breyer wrote for the majority. Justice Clarence Thomas filed a dissenting opinion, joined by Justice Samuel Alito. Justice Barrett had no part in the decision or consideration of the case because she was not a member of the court when the case was argued.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• April 16: SCOTUS will conference. A conference is a private meeting of the justices.
• April 19:
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in three cases.
• April 20: SCOTUS will hear arguments in two cases
• April 21: SCOTUS will hear arguments in two cases.
• April 23: SCOTUS will conference. 

SCOTUS trivia

Supreme Court justices are known for their landmark decisions and fashion choices of robes, collars, and jabots. During which court term did the Justices first start wearing robes?

1. 1792
2. 1912
3. 1801
4. 1799

Choose an answer to find out!

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month’s edition includes nominations, confirmations, and vacancies from March 1 to April 1. 

Highlights

• Vacancies: There have been five new judicial vacancies since the February 2021 report. There are 69 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, 73 of 890 active federal judicial positions were vacant at the time of the report.
• Nominations: There have been 10 new nominations announced since the February 2021 report.
• Confirmations: There have been no new confirmations since the February 2021 report.

Vacancy count for April 1, 2021

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

Five judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, the president nominates individuals to fill the vacancies. Nominations are subject to U.S. Senate confirmation.

• Judge Peter Hall assumed senior status on the U.S. Court of Appeals for the 2nd Circuit.
• Judge Merrick Garland retired from the U.S. Court of Appeals for the D.C. Circuit, following his confirmation as U.S. Attorney General.
• Judge Mary Briscoe assumed senior status on the U.S. Court of Appeals for the 10th Circuit.
• Judge Darnell Jones assumed senior status on the U.S. District Court for the Eastern District of Pennsylvania.
• Judge Anthony J. Battaglia assumed senior status on the U.S. District Court for the Southern District of California.

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.

U.S. District Court vacancies

The following map shows the number of vacancies in the United States District Courts as of April 1, 2021.

New nominations

As of April 1, 2021, President Joe Biden (D) announced his intent to nominate 10 individuals to Article III judgeships. 

• Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit
• Tiffany Cunningham, to the United States Court of Appeals for the Federal Circuit
• Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit
• Regina Rodriguez, to the United States District Court for the District of Colorado
• Florence Pan, to the United States District Court for the District of Columbia
• 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
• Margaret Strickland, to the United States District Court for the District of New Mexico

President Biden also announced his intent to nominate Rupa Ranga Puttagunta to the Superior Court of the District of Columbia.

The official nominations of these judges have not been submitted to the U.S. Senate as of this writing.

New confirmations

As of April 1, there have been no federal judicial confirmations during the Biden administration.

As of April 1 of the first year of President Donald Trump’s presidency, the U.S. Senate had not confirmed any Article III judicial nominees.

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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Welcome to the ‘80s! There’s a new Hall & Oates album playing, the Lakers and Celtics just went into overtime, and everybody’s cutting footloose. But before we head to the mall (or back to the future), let’s take a look at President Ronald Reagan’s (R) judicial nominees from 1981 to 1989.

During his two terms in office, President Reagan had 402 judges successfully nominated and confirmed to the federal bench. Of those, 382 were to Article III judgeships. Among the most notable of these are Supreme Court Justices Anthony Kennedy, Sandra Day O’Connor, and Antonin Scalia. Reagan also nominated William Rehnquist to become Chief Justice of the Supreme Court. 

When President Reagan assumed office in January 1981, he inherited 34 life-term vacancies out of 660 total Article III judgeships (5.15%). Reagan inherited the second-lowest vacancy percentage of all presidents since 1981. President George H.W. Bush had a lower vacancy percentage when he assumed office, 4.89%. 

Of his Article III appointees–not including Supreme Court nominations–President Reagan appointed 83 judges to the United States Courts of Appeal, 290 judges to U.S. district courts, and six judges to the U.S. Court of International Trade. 

Looking ahead

We’ll be back on April 19 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Brittony Maag, Jace Lington, and Sara Reynolds.

The next 24 hours

What is changing in the next 24 hours?

• Arkansas (Republican trifecta): Gov. Asa Hutchinson (R) extended the state’s coronavirus emergency order through May 30.

• Colorado (Democratic trifecta): All residents 16 and older will be eligible for vaccination starting April 2. Residents 50 and older have been eligible since March 19.

• Connecticut (Democratic trifecta): 
  • On April 2, outdoor amusement parks can reopen, and outdoor event venues can operate at 50% capacity or 10,000 individuals, whichever is fewer. Indoor stadiums will also be able to open at 10% capacity.
  • Residents age 16 and older are eligible to schedule vaccinations starting April 1. Residents 45 and older have been eligible for vaccination since March 19.

• New Jersey (Democratic trifecta): Gov. Phil Murphy (D) announced the general outdoor gathering limit will expand from 50 to 200 people starting April 2. Large venues (like sports stadiums and concert halls) with seating capacity of 2,500 or greater will also be able to operate at 20% capacity indoors or 30% outdoors. Previously, only large venues capable of seating 5,000 or more people could operate at 10% capacity indoors or 15% outdoors. Indoor gatherings are still limited to 25 people.

• New York (Democratic trifecta): Event, arts, and entertainment venues can reopen at 33% capacity (with a limit of 100 people indoors or 200 outdoors) starting April 2.

• New Hampshire (Republican trifecta): Residents 16 and older will be eligible for vaccination starting April 2. Residents 30 and older became eligible March 31.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

• California (Democratic trifecta): Residents 50 and older will be eligible for vaccination starting April 1.

• Delaware (Democratic trifecta): Gov. John Carney (D) announced all residents 16 and older will be eligible for vaccination starting April 6. Currently, all residents 50 and older are eligible. 

• Georgia (Republican trifecta): On Wednesday, March 31, Gov. Brian Kemp (R) extended the COVID-19 public health state of emergency through April 30. Kemp also eased restrictions on businesses and individuals, effective April 7. Once the order takes effect, there will no longer be a ban on gatherings or any social distance requirements in businesses like bars, movie theaters, or gyms. Additionally, Kemp’s order prohibits law enforcement from closing businesses and organizations that do not comply with COVID-19 restrictions. 

• Kentucky (divided government): Gov. Andy Beshear (D) announced all residents 16 and older will be eligible for vaccination starting April 5. Currently, everyone 50 and older is eligible.

• Maine (Democratic trifecta): Gov. Janet Mills (D) announced a revised timeline for vaccine distribution. The state is aiming to open eligibility to everyone 50 and older April 1.

• Minnesota (divided government): 
  • Starting April 1, seated indoor events (like concerts) of up to 3,000 people and unseated events of up to 1,500 people will be allowed.
  • On March 30, residents 16 and older became eligible to receive a coronavirus vaccine. 

• Mississippi (Republican trifecta): Gov. Tate Reeves (R) issued an executive order easing restrictions for certain events. Large events at indoor arenas can expand to 75% capacity, and K-12 extracurricular events can expand to 50% capacity indoors, with no limit on outdoor events.

• Montana (Republican trifecta): Residents 16 and older will be eligible for vaccination starting April 1. Currently, the state is in Phase 1B+, which allows vaccinations for everyone 60 and older.

• Nebraska (Republican trifecta): On Wednesday, March 31, Gov. Pete Ricketts (R) announced that local health departments will have the option of expanding vaccine eligibility to residents 16 and older starting April 5. 

• Pennsylvania (divided government): Acting Health Secretary Alison Beam announced law enforcement officers, firefighters, grocery store workers, and food and agriculture workers were eligible for vaccination on March 31. All residents in Phase 1B (page 18) will be eligible April 5. All residents in Phase 1C (page 18) will be eligible April 12. Starting April 19, everyone 16 and older will be eligible for vaccination.

• South Dakota (Republican trifecta): On Wednesday, March 31, Gov. Kristi Noem (R) announced that residents 16 and older will become eligible to receive a coronavirus vaccine on Monday, April 5. 

• Vermont (divided government): On Wednesday, March 31, Gov. Phil Scott (R) announced that out-of-state students and out-of-state homeowners will become eligible to receive a coronavirus vaccine on April 30. 

• Virginia (Democratic trifecta): 
  • Effective Thursday, April 1, Gov. Ralph Northam (D) eased some coronavirus restrictions. The limit on indoor social gatherings increased from 10 to 50 people, while the limit on outdoor gatherings increased from 25 to 100. Indoor and outdoor events at entertainment venues are limited to 30% capacity, although indoor events are prohibited from accommodating more than 500 people. Similarly, in-person graduations are limited to 30% capacity, with no more than 5,000 people at outdoor ceremonies or 500 people indoors.
  • On April 1, Northam announced residents 16 and older will become eligible to receive a coronavirus vaccine on April 18. 

• Washington (Democratic trifecta): On Wednesday, March 31, Gov. Jay Inslee (D) announced that residents 16 and older will become eligible to receive a coronavirus vaccine on April 15. 

• Wisconsin (divided government): On Tuesday, March 30, Gov. Tony Evers (D) announced that residents 16 and older will become eligible to receive a coronavirus vaccine on April 5. 

• Wyoming (Republican trifecta): On Wednesday, March 31, Gov. Mark Gordon (R) announced that, effective immediately, residents 16 and older are eligible to receive a coronavirus vaccine. 

School closures and reopenings

    Read more: School responses to the coronavirus (COVID-19) pandemic during the 2020-2021 academic year

Overview:

• Two states (Del., Hawaii) and Washington, D.C. had state-ordered regional school closures, required closures for certain grade levels, or allowed hybrid instruction only.
  • 2016-17 enrollment: 403,664 students (0.80% of students nationwide)
• Six states (Ark., Fla., Iowa, N.H., Texas, W.Va.) had state-ordered in-person instruction.
  • 2016-17 enrollment: 9,635,661 students (19.05% of students nationwide)
• Two states (Ariz., Ore.) had state-ordered in-person instruction for certain grades.
  • 2016-17 enrollment: 1,702,084 students (3.36% of students nationwide)
• Forty states left decisions to schools or districts.
  • 2016-17 enrollment: 38,846,450 students (76.79% of students nationwide)

Details:

• Oregon – Public elementary schools had to reopen no later than March 29 for hybrid or full-time in-person instruction. Parents could still keep their children in fully remote instruction.

Travel restrictions

    Read more: Travel restrictions issued by states in response to the coronavirus (COVID-19) pandemic, 2020

Overview:

• Since the start of the pandemic, governors or state agencies in 27 states and the District of Columbia issued executive orders placing restrictions on out-of-state visitors. At least 21 of those orders have been rescinded.
• Since March 25, one state has ended its travel restrictions. 

Details:

• New York – Effective April 1, out-of-state travelers and returning residents are no longer required to self-quarantine upon arrival or display a negative COVID-19 test. The New York State Department of Health recommends all travelers self-quarantine. Travelers are still required to fill out an online Traveler Health Form. 

Federal responses

Read more: Political responses to the coronavirus (COVID-19) pandemic, 2020

• On March 28, Centers for Disease Control and Prevention (CDC) Director Dr. Rochelle Walensky extended a federal evictions moratorium through June 30. The moratorium was first put in place Sept. 4, 2020. 
• On March 30, President Joe Biden (D) signed a bill extending the deadline to apply for a forgivable loan through the Paycheck Protection Program (PPP) from March 31 to May 31. The bill also extended the authorization period for new loans through June 30. The bill passed the House 415-3 and passed the Senate 92-7.
• On March 31, the Food and Drug Administration (FDA) authorized two at-home COVID-19 tests. Quidel Corporation and Abbott Laboratories developed the rapid tests, which are self-administered and deliver results within minutes.

Vaccine eligibility

Note: This section may not reflect the most recent stories in today’s The next 24 hours and Since our last edition sections above. This section details eligibility for different age groups in each state. 

We last looked at vaccine eligibility in our March 30 newsletter. As of March 31, at least one county in each state allowed vaccinations for the following age groups:

• Ages 16+: 25 states
• Ages 18+: Three states
• Ages 30+: Two states
• Ages 40+ or 45+: Two states 
• Ages 50+ or 55+: Six states
• Ages 60+ or 65+: 12 states and Washington, D.C.

For more details on vaccine distribution, including the eligibility of grocery store workers, food service employees, and people with underlying conditions, click here.

In some states, vaccine eligibility can vary by county. The data above details the loosest restrictions in each state. For example, if one county in a state allows vaccines for anyone 55 or older, the state is marked as 55+, even if every other county limits vaccinations to people 65 or older. To see what states allow eligibility for groups in specific counties, check out the New York Times article here.

COVID-19 policy changes: Thursday, April 2, 2020

The first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020. But it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout March and April, many states issued stay-at-home orders, closed schools, restricted travel, and changed election dates. Many of those policies remain in place today. Over the course of this week, we’ll look back at some of the defining policy responses to the coronavirus pandemic.

Here’s what happened this time last year. To see a list of all policy changes in each category, click the links below.

Thursday, April 2, 2020:

• Stay-at-home orders:
  • Executive Order GA-14 went into effect. The order directed individuals in Texas to stay home except for essential activities and closed nonessential businesses in the state. Gov. Greg Abbott (R) issued the order March 31.
  • Executive Order 28 went into effect. The order directed individuals in Maine to stay at home. Gov. Janet Mills (D) issued the order March 31.

• School closures:
  • Indiana Gov. Eric Holcomb (R) announced schools would remain closed through the end of the academic year.
  • Michigan Gov. Gretchen Whitmer (D) announced schools statewide would remain closed for the rest of the academic year.

• Election changes:
  • Judge William M. Conley of the United States District Court for the Western District of Wisconsin issued an order extending absentee voting deadlines in Wisconsin’s April 7, 2020, election.

The next 72 hours

What is changing in the next 72 hours?

• Connecticut (Democratic trifecta): Connecticut’s limit on early childhood class sizes will increase from 16 to 20 children on March 29. Gov. Ned Lamont (D) made the announcement on March 4.

• Hawaii (Democratic trifecta): Residents age 60 and older will be eligible for vaccination starting March 29. Previously, people 65 and older were eligible to receive vaccines. 

• Kentucky (divided government): Kentucky public schools must offer at least two days of in-person instruction each week starting March 29. The rule is the result of HB 208, which Gov. Andy Beshear (D) signed on March 4. The bill passed 28-8 in the state Senate on March 3, and the House approved the Senate’s version 81-15 on March 4. Parents can still keep their children in fully remote learning.

• Minnesota (divided government): On Friday, March 26, Gov. Tim Walz (D) announced that residents 16 and older will become eligible to receive a coronavirus vaccine on March 30. 

• Missouri (Republican trifecta): All residents in Phase 2 (including construction workers, higher education faculty and staff, and homeless people) will be eligible for vaccinations starting March 29.

• New Jersey (Democratic trifecta): On March 29, vaccine eligibility will expand to include agriculture workers, warehouse employees, clergy, and elections personnel. To see a full list of eligible groups, click here.

• North Dakota (Republican trifecta): Residents 16 and older will become eligible to receive a coronavirus vaccine March 29.

• Oklahoma (Republican trifecta): All residents 16 and older will become eligible to receive a coronavirus vaccine March 29.

• Texas (Republican trifecta): All residents 16 and older will become eligible to receive a coronavirus vaccine March 29.

• Oregon (Democratic trifecta): 
  • All counties can start vaccinating people in Phase 1B, Group 6, starting March 29. People in Phase 1B, Group 7, will be eligible for vaccinations starting April 19. On May 1, everyone age 16 and older will be eligible for vaccination.
  • Public elementary schools are required to reopen no later than March 29 for hybrid or full-time in-person instruction. Parents can still keep their children in fully remote instruction.

• Vermont (divided government): On March 29, vaccine eligibility will expand to include people 50 and older. Previously, everyone 60 and older became eligible for vaccination on March 25.

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

• Arizona (Republican trifecta): Gov. Doug Ducey (R) lifted restrictions on businesses and gatherings on March 25. All previous business restrictions are now recommendations. Businesses may enforce mask-wearing and social distancing, if they choose. Events larger than 50 people no longer need state approval. Ducey’s order also preempts the enforcement of local mask mandates, except in government buildings and on public transportation. Residents are still encouraged to wear masks. 

• California (Democratic trifecta): Gov. Gavin Newsom (D) announced people 50 and older will be eligible for vaccination starting April 1. All residents 16 and older will be eligible for vaccination starting April 15.

• Colorado (Democratic trifecta): Gov. Jared Polis (D) extended the state’s dial reopening framework order through April 16. To read more about the dial’s metrics and restrictions, click here.

• Maine (Democratic trifecta): Beginning March 26, bars can resume indoor service under the Seated Food and Drink COVID-19 Checklist. Indoor entertainment venues will be allowed to operate at 50% capacity. The limit will increase to 75% on May 24. Outdoor entertainment venues will be allowed to operate at 75% capacity March 26 and fully reopen May 24. 

• New Hampshire (Republican trifecta): On Thursday, March 25, Gov. Chris Sununu (R) announced that people 40 and older will be eligible for vaccination on Monday, March 29, while people 30 and older will be eligible Wednesday, March 31. People 16 and older will become eligible to receive a coronavirus vaccine April 2.

• New York (Democratic trifecta): 
  • Indoor family entertainment centers and amusement parks will be able to reopen at 25% capacity starting March 26.
  • Gov. Andrew Cuomo (D) announced new nursing home visitation guidelines, effective immediately. The guidance allows visits for all residents at all facilities. Previously, facilities had to be free of COVID-19 cases for 14 days before visits were permitted. To read the full guidance, click here.

• North Carolina (divided government): 
  • Effective Friday, March 26, the limit on indoor gatherings will increase from 25 to 50 people, while the limit on outdoor gatherings will increase from 50 to 100 people. Retail stores, as well as museums and salons, will be allowed to operate at 100% capacity, while businesses like restaurants and gyms will be allowed to operate at 75% capacity indoors and 100% capacity outdoors. The new order will allow bars and movie theaters to operate at 50% capacity. Additionally, the order removes the alcohol curfew, which prohibits alcohol sales after 11 p.m. Gov. Roy Cooper (D) made the announcement Tuesday, March 23.
  • On Thursday, March 25, Cooper announced that the rest of Group 4 will become eligible to receive a coronavirus vaccine on March 31. Group 4 includes a range of essential workers, some of whom were eligible March 17. Cooper also announced that all North Carolina adults will be eligible April 7. 

• Washington (Democratic trifecta): On Thursday, March 25, Gov. Jay Inslee (D) ordered all K-12 schools to follow updated Centers for Disease Control and Prevention (CDC) social distance guidance, which says students should keep three feet apart. 

• West Virginia (Republican trifecta): On Wednesday, March 24, Gov. Jim Justice (R) announced that all live music performances will be allowed to resume Friday, March 26, and that summer camps will be allowed to reopen May 1. Justice also announced that the state’s color-coded County Alert System will no longer be used to determine if high schools can reopen for in-person instruction. High schools will join all other schools in offering full-time, in-person instruction unless there is a COVID-19 active outbreak. 

This time last year: Friday, March 27, 2020

The first case of COVID-19 in the U.S. was confirmed on Jan. 21, 2020. But it wasn’t until March when the novel coronavirus upended life for most Americans. Throughout March and April, many states issued stay-at-home orders, closed schools, restricted travel, and changed election dates. Many of those policies remain in place today. Over the course of this week, we’ll look back at some of the defining policy responses to the coronavirus pandemic.

Here’s what happened this time last year. To see a list of all policy changes in each category, click the links below.

Friday, March 27, 2020:

• Stay-at-home orders:
  • On March 25, Gov. Tim Walz (D) issued a stay-at-home order, which directed individuals in the state to remain at home unless performing essential activities and placed restrictions on non-essential businesses. The order took effect March 27.

• Travel restrictions: 
  • South Carolina Gov. Henry McMaster (R) issued an executive order requiring people traveling to South Carolina from Connecticut, New York, New Jersey, and New Orleans to self-quarantine for two weeks. 
  • New Mexico Gov. Michelle Lujan Grisham (D) signed an executive order requiring all travelers who entered New Mexico through an airport to self-quarantine for 14 days. 

• School closures:
  • New York Gov. Andrew Cuomo (D) extended the statewide school closure from April 1 to April 15.
  • Wyoming Gov. Mark Gordon (R) extended the statewide school closure from April 3 to April 17.

• Election changes:
  • Pennsylvania Governor Tom Wolf (D) signed into law legislation postponing the state’s primary election from April 28, 2020, to June 2, 2020.
• Federal government responses:
  • President Donald Trump (R) signed the $2.2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act into law.

We #SCOTUS and you can, too!

Court announcements

On March 5, the court’s Public Information Office announced that all of the justices had been fully vaccinated. 

On March 19, the court held its first in-person conference since last spring. Some of the justices participated remotely.

March sitting

The Supreme Court begins its March sitting the week of March 22 via teleconference and will provide audio livestreams of the argument sessions. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19. SCOTUS will hear arguments in seven cases for a total of six hours of oral argument. 

Click the links below to read more about the specific cases before SCOTUS during the first week of its March sitting.

March 22

• Cedar Point Nursery v. Hassid came to the court from the U.S. Court of Appeals for the 9th Circuit. The case concerns the regulations governing labor union organizers’ access to employees at worksites. 

California state law allows union organizers access to employees at worksites under limited circumstances. This is known as the Agricultural Labor Relations Act’s (ALRA) access regulation. The Agricultural Labor Relations Board presides over its enforcement. 

In 2015, organizers from the United Farm Workers (UFW) union tried to gain access to two corporations’ worksites–Cedar Point Nursery and Fowler Packing Company, collectively known as “The Growers”–and later filed complaints against The Growers, citing unfair labor practices and blocking the organizers’ access to the workers. 

In 2016, The Growers filed a complaint in U.S. District Court against the Board, seeking to bar enforcement of the access regulation on their worksites and challenging the regulation’s constitutionality. The district court denied the request and dismissed the complaint. On appeal, the 9th Circuit affirmed, or upheld the district court’s ruling.

The questions presented: “Whether the uncompensated appropriation of an easement that is limited in time [is effectively] a per se physical taking under the Fifth Amendment.”

March 23

• United States v. Cooley originated from the U.S. Court of Appeals for the 9th Circuit and concerns the scope of law enforcement officers’ search-and-seizure authority.

In 2016, Crow Tribe of Montana Officer James Saylor detained Joshua Cooley and searched Cooley’s vehicle, which was pulled over in Indian Country on U.S. Route 212. Saylor confiscated several firearms and observed equipment appearing to contain methamphetamine. 

Cooley was arrested and indicted in the U.S. District Court for the District of Montana. The district court granted Cooley’s motion to suppress evidence from Saylor’s search, ruling that Saylor conducted an “unreasonable search and seizure” under the Indian Civil Rights Act. The U.S. government appealed to the U.S. Court of Appeals for the 9th Circuit. The court affirmed the district court’s ruling. 

The questions presented: Were the lower courts wrong to suppress evidence on the theory that an Indian tribe police officer was unauthorized to detain and search a non-Indian based on a potential violation of state or federal law while on a public right-of-way in an Indian reservation?

March 24

• Caniglia v. Strom concerns the scope of police officers’ authority for search and seizure and as community caretakers. The case originated from the U.S. Court of Appeals for the 1st Circuit. 

In 2015, Edward Caniglia and his wife argued at their home in Cranston, Rhode Island. During the argument, Caniglia retrieved an unloaded gun from their bedroom. Mrs. Caniglia spent the night at a nearby hotel. The next day, Mrs. Caniglia called the police to request a wellness check on her husband and an escort home.

At the home, the sergeant determined Caniglia was imminently dangerous to himself and others. The police requested Caniglia go to a nearby hospital for a psychiatric evaluation. Caniglia complied, later alleging he did so based on a police promise that his guns would not be confiscated. The sergeant seized firearms and ammunition from the home. 

Later, Caniglia made several attempts to retrieve his firearms from the police department. His requests were denied. Caniglia filed suit in district court against the police department and city officials, alleging violations of his rights under the U.S. Constitution and state law. The firearms were returned to Caniglia. The U.S. District Court for the District of Rhode Island granted the defense’s motion for summary judgment on Caniglia’s legal claims and held that the police officers’ seizures were protected under the Fourth Amendment’s community caretaking exception. On appeal, the 1st Circuit upheld the district court’s ruling. 

The question presented: “Whether the ‘community caretaking’ exception to the Fourth Amendment’s warrant requirement extends to the home.”

April sitting

On March 12, SCOTUS released its April calendar. The court will hear 12 hours of oral argument in 14 cases between April 19 and April 28. The court will hear arguments remotely and provide live audio streams to the public. To date, all arguments have been conducted remotely this term.

To date, all but one of the cases accepted for argument during this term have been scheduled. Six cases were removed from the argument calendar. One case, Terry v. United States, will be rescheduled later in the term. The court has agreed to hear 63 cases in total during its October 2020-2021 term.

In its 2019-2020 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

The following list of cases is organized by scheduled argument date:

April 19, 2021

• Yellen v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation)
• Sanchez v. Mayorkas

April 20, 2021

• Greer v. United States
• United States v. Gary

April 21, 2021

• City of San Antonio, Texas v. Hotels.com, L.P.
• Minerva Surgical Inc. v. Hologic Inc.

April 26, 2021

• Americans for Prosperity v. Becerra (Consolidated with Thomas More Law Center v. Becerra)
• Guam v. United States

April 27, 2021

• HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association
• United States v. Palomar-Santiago

April 28, 2021

• Mahanoy Area School District v. B.L.
• PennEast Pipeline Co. v. New Jersey

Opinions

SCOTUS issued one opinion since our March 8 issue. The court has issued 19 opinions so far this term. Four cases were decided without argument.

On March 8, the court issued an opinion in Uzuegbunam v. Preczewski which concerned nominal damages claims and whether they provide legal standing in federal cases. Nominal damages claims are when a judge finds in favor of one party in a lawsuit but concludes that no real harm was done and awards a very small, or nominal, amount of monetary relief.

The case originated from the U.S. Court of Appeals for the 11th Circuit and was argued before SCOTUS on January 12, 2021. So far, the court has accepted four cases from the 11th Circuit and has decided one during this term.

In an 8-1 ruling, the court held that awarding nominal damages provides legal standing in a case, meaning that the plaintiff has the legal right to sue. Justice Clarence Thomas delivered the majority opinion of the court and Justice Brett Kavanaugh filed a concurring opinion. Justice Thomas has authored three majority opinions during the current term.

Chief Justice John Roberts filed a dissenting opinion, concluding that nominal damages claims are not a sufficient basis for Article III legal standing in a case. This was Roberts’ first dissenting opinion in a case argued during the 2020-2021 term as well as his first lone, or solitary, dissent since joining the court in 2005. 

Grants

SCOTUS accepted one case since our March 8 issue, to be scheduled for argument during the upcoming October 2021-2022 term. The court has granted review in a total of eight cases for the term, which is scheduled to begin on October 4, 2021. 

Thompson v. Clark concerns the Supreme Court’s favorable termination rule for plaintiffs suing for unconstitutional conviction or imprisonment and burden of proof requirements in cases of unlawful warrantless entry under the Fourth Amendment. Thompson originated from the U.S. Court of Appeals for the 2nd Circuit.

The favorable termination rule was established in the 1994 case Heck v. Humphrey to prevent a plaintiff’s civil claims potentially undermining the validity of the plaintiff’s criminal conviction. The Supreme Court held that the plaintiff’s criminal proceeding must end in a favorable termination to the plaintiff in order for a suit to proceed. 

Following that decision, circuit courts have differed on the definition of “favorable termination.”. Some circuits hold that plaintiffs must clearly be found innocent—a higher standard—while others hold that the judgment simply must not be inconsistent with the plaintiff’s innocence. 

The questions presented in Thompson v. Clark are:

1. “Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has ‘formally ended in a manner not inconsistent with his innocence,’ Laskar v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020), or that the proceeding ‘ended in a manner that affirmatively indicates his innocence,’ Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018); see also Laskar, 972 F.3d at 1293 (acknowledging 7-1 circuit conflict).
2. “Where a Section 1983 plaintiff brings a Fourth Amendment claim for unlawful warrantless entry of his home and the government pursues a justification of exigent circumstances, does the government have the burden to prove exigency existed (as the Third, Sixth, Ninth and Tenth Circuits have held), or does the plaintiff have to prove its non-existence (as the Second, Seventh and Eighth Circuits have held).”

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• March 22:
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in one case.
• March 23: SCOTUS will hear arguments in one case.
• March 24: SCOTUS will hear arguments in one case.
• March 26: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

SCOTUS is scheduled to begin its next term on October 4, 2021. Which of the following start dates have been used during previous SCOTUS terms? 

a) The first Monday in October

b) The first Monday in February

c) The second Monday in October

d) All of the above

Choose an answer to find out!

Federal court action

Nominations and confirmations

President Biden announced no new nominees and the U.S. Senate has confirmed no new nominees since our March 8 issue.

President Biden has not yet made any federal judicial nominations during his term. 

In comparison to previous presidential administrations, Presidents Donald Trump (R) and George H.W. Bush (R) made their first Article III judicial appointments by June 1 of the first year of their presidencies. Presidents George W. Bush (R) and Ronald Reagan (R) made their first appointments by August 1, and Presidents Barack Obama (D) and Bill Clinton (D) made their first Article III judicial appointments by October 1 of their first years in office. These figures do not include appointments to the U.S. Supreme Court.

Vacancies

The federal judiciary currently has 72 vacancies. As of publication, there were no pending nominations.

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

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, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Welcome to the ‘90s! This edition of Bold Justice takes us back to a time when the Chicago Bulls were a reigning dynasty on the basketball court, when we caught our first Pokémon, and when we realized that our hearts would go on. Today, we’re taking a look at President Bill Clinton’s (D) judicial nominees.

During his term of office, President Clinton made 387 successful judicial appointments where the nominee joined the court. Of those appointments, 378 were Article III judges. Among the most notable of these are Supreme Court justices Ruth Bader Ginsburg and Stephen Breyer.

When President Clinton assumed office in January 1993, he inherited 111 life-term vacancies out of 842 total Article III judgeships (13.18%), the highest vacancy percentage since the inauguration of President Ronald Reagan (R) in January 1981. 

Of his Article III appointees–not including Supreme Court nominations–Clinton appointed 66 judges to the United States Courts of Appeal, 305 judges to U.S. district courts, and five judges to the U.S. Court of International Trade. 

Looking ahead

We’ll be back on March 29 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Jace Lington, Brittony Maag, and Sara Reynolds.