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U.S. Supreme Court issues decision in donor disclosure case. What comes next?

U.S. Supreme Court issues decision in donor disclosure case. What comes next?

On July 1, the U.S. Supreme Court issued its decision in Americans for Prosperity Foundation v. Bonta, striking down a California policy that required nonprofits to disclose their donors’ identities to the state’s attorney general. 

What comes next in the wake of this decision? First, we’ll discuss the case background and the Supreme Court’s ruling, then we’ll turn our attention to the implications of that ruling. 

What’s at issue, and how lower courts have ruled

The California policy in question required nonprofits to file copies of their IRS 990 forms with the state. Form 990 includes Schedule B, which contains the names and addresses of all individuals who donated more than $5,000 to the nonprofit in a given tax year. Although the law did not allow the public access to Schedule B information, court documents show that inadvertent disclosures had occurred. 

In 2014, Americans for Prosperity challenged the law in U.S. district court, triggering a series of legal developments spanning several years:

  • 2014: Americans for Prosperity Foundation (AFPF), a 501(c)(3) nonprofit, filed suit in U.S. district court, alleging that the California law violated its First Amendment rights. 
  • 2015: The Thomas More Law Center (TMLC), also a 501(c)(3) nonprofit, filed a similar suit in the same U.S. district court. 
  • 2016: Judge Manuel Real of the U.S. District Court for the Central District of California found in favor of AFPF and barred the state from collecting the group’s Schedule B information. In a separate 2016 ruling, Real also found in favor of TMLC and prevented the state from collecting the group’s Schedule B information. Real was appointed to the court by Lyndon Johnson (D).
  • 2018: The two suits were combined on appeal. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously overturned Real’s rulings in 2018. Judges Raymond Fisher, Richard Paez, and Jacqueline Nguyen issued the ruling. Fisher and Paez are Bill Clinton (D) appointees. Barack Obama (D) appointed Nguyen.
  • 2019: The plaintiffs petitioned the Ninth Circuit for en banc review. That petition was rejected March 29, 2019. On Aug. 26, 2019, the plaintiffs appealed to the Supreme Court.
  • 2021: On Jan. 8, the U.S. Supreme Court agreed to take up the consolidated appeal. Oral argument took place on April 26.

How the Supreme Court ruled   

The Supreme Court ruled 6-3 in favor of the plaintiffs, striking down the California law.  Chief Justice John Roberts, a George W. Bush (R) appointee,  wrote the majority opinion. Roberts said, “California has an important interest in preventing wrongdoing by charitable organizations.” But, he went on to say that there was “a dramatic mismatch” between that interest and California’s donor disclosure requirements. He wrote: “The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though the information will become relevant in only a small number of cases involving filed complaints.” Roberts added, “In reality, then, California’s interest is less in investigating fraud and more in ease of administration.” He said that interest did not “reflect the seriousness of the actual burden that the demand for Schedule Bs imposes on donors’ association rights.” 

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – all of whom were appointed by Republican presidents – concurred in the judgment. 

Alito, Gorsuch, and Thomas declined to join some parts of the majority opinion, disagreeing about whether an exacting scrutiny or strict scrutiny standard should be applied in cases like this. Under the exacting scrutiny standard, a law that infringes on a constitutional right will be upheld only if it is narrowly tailored to advance a compelling government interest. The strict scrutiny standard, which is more stringent, requires that a challenged law be narrowly tailored using the least restrictive means available to serve a compelling government interest.

In the majority opinion, Roberts said the exacting scrutiny standard should be applied to all cases of this type. Alito said he was “not prepared at this time to hold that a single standard applies to all disclosure requirements.” Gorsuch joined Alito in this opinion. In his concurrence, Thomas said the court should have invoked the strict scrutiny standard because “our precedents require application of strict scrutiny to laws that compel disclosure of protected First Amendment association.” 

Justice Sonia Sotomayor wrote a dissent, joined by Justices Stephen Breyer and Elena Kagan – all Democratic appointees. Sotomayor said the majority opinion “discards [the Supreme Court’s] decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals.” Sotomayor added, “The evidence shows that California’s confidential reporting requirement imposes trivial burdens on petitioners’ associational rights and plays a meaningful role in [state] attorneys’ ability to identify and prosecute charities engaged in malfeasance,” which she said is “more than enough to satisfy the First Amendment.” 

What are the reactions, and what comes next

Bartlett Cleland, counsel and chief strategy and innovation officer for the American Legislative Exchange Council, and Lee E. Goodman, a former chairman of the Federal Election Commission, wrote the following in an op-ed praising the Supreme Court’s ruling in Americans for Prosperity Foundation v. Bonta

Fortunately, six Justices reaffirmed in definitive terms the First Amendment’s powerful protection for speech, assembly, and privacy.  In striking the California donor disclosure rule, they demonstrate that they understand the history of government abuses and the need for people to be secure in their associations and the importance of conscience to freedom.

It is unclear how this ruling will affect donor disclosure and privacy laws in other states. David Strauss, a law professor at the University of Chicago, said

The Court has tried to draw a line between disclosures that are really going to hurt people … and disclosures that are unlikely to be harmful. The question is whether, after this decision, the Court is still going to try to draw that line, or is instead going to say: disclosure laws of all kinds risk chilling speech.

Rick Hasen, a law professor at the University of California, Irvine, said that the Supreme Court’s ruling could affect campaign finance laws more broadly:

The court’s ruling calls into question a number of campaign finance disclosure laws. Perhaps even more significant, it also threatens the constitutionality of campaign contribution laws, which are judged under the “exacting scrutiny” standard, too. Lower courts can now find that such laws are not narrowly tailored to prevent corruption or its appearance or do not provide voters with valuable information — two interests the court recognized in the past to justify campaign laws.

The big picture

Number of relevant bills by state: We’re currently tracking 39 pieces of legislation dealing with donor disclosure and privacy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s)

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations. 



Kentucky state Rep. John “Bam” Carney dies

Kentucky state Rep. John “Bam” Carney (R) died while in office on July 17, 2021, due to long-term health issues. 

Carney was first elected to represent House District 51 in 2008. He most recently won re-election in 2020, defeating Richard Steele (D) 78.6% to 21.4%. He was elected as state House majority leader in 2018 and served in that role until January 2020, when House Republicans named Rep. Steven Rudy (R) to serve as acting majority leader while Carney was ill. 

Carney was admitted to the ICU with pancreatitis in December 2019. He had spent the past year and a half in hospitals and was diagnosed with pneumonia in June 2021. He died on July 17 at age 51.

“Our hearts are broken at the loss of our friend and brother, Bam Carney. Bam was a passionate educator, an outstanding legislator, and a tremendous leader for our Commonwealth,” House Speaker David Osborne (R) said in a statement. 

Carney is the second member of the Kentucky legislature to die this month; former state Senator Tom Buford (R) died on July 6.

When a vacancy occurs in the Kentucky General Assembly, a special election must be held to fill the vacant seat. The governor must call for an election if the General Assembly is not in session. If lawmakers are in session, the presiding officer in the house where the vacancy happened calls for the election. The person elected to the seat serves for the remainder of the unexpired term. Carney’s term was set to expire on December 31, 2022.

Kentucky is one of 25 states to fill state legislative vacancies through special elections.

Additional reading:



Dartmouth study evaluates tone of Ballotpedia’s COVID-19 coverage

Earlier this year, a team of researchers at Dartmouth developed a method to evaluate the tone of news articles written about Covid-19. Using standard sentiment indicators, the Dartmouth team assessed the text of 42,000 articles from dozens of U.S. and international news sources.

The study found that U.S.-based news sources used significantly more negative language than the international outlets studied. 87% of major U.S. media stories were negative in tone compared to 50% of non-U.S. sources. The international sample included articles from the U.K.’s BBC, Canada’s CBC, and Australia’s ABC; each country’s dominant news source, all publicly owned. The U.S. outlets analyzed in the study are privately owned with more competitors within the country’s borders than the international outlets studied. The political leaning of the outlets made no difference in their usage of negative language.

The Dartmouth research team cross-checked the negative sentiment indicators of articles in the international and U.S. press against the extent of COVID spread in the relevant countries. They found that there was no correlation between the number of COVID cases in a particular country and the extent of negative tone in the country’s news sources.

Ballotpedia submitted several hundred articles from its coverage of Covid-19 to find how it would compare to the articles in the study. The Dartmouth team found Ballotpedia used significantly fewer negative sentiment indicators in its language choices compared to the major U.S. media outletsBallotpedia articles were .92 standard deviations less negative than the average of all other sources analyzed.



Bold Justice: Six-month checkup on federal judicial activity during Biden’s first year

Bold Justice

Welcome to the July 19 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

In a special edition of Bold Justice, we’ll be taking the temperature of federal judicial activity during the first year of the Biden administration with a six-month checkup on vacancies, nominations, and confirmations. 

Stay up to date on the latest news by following Ballotpedia on Twitter or subscribing to the Daily Brew.

Before we get to our checkup, let’s take a quick look at the latest U.S. Supreme Court activity. 

Arguments scheduled

SCOTUS is in its summer recess, so they are not issuing opinions. But that doesn’t mean they’re totally on vacation. On July 13, the court released the calendar for its October sitting. It will hear nine hours of oral argument in nine cases between October 4 and October 13. 

Click the links below to learn more about the cases:

October 4, 2021

October 5, 2021

October 6, 2021

October 12, 2021

October 13, 2021

To date, 20 cases granted review during the term have not yet been scheduled for argument.

Grants

SCOTUS has not accepted any new cases to its merits docket since our July 12 issue. To date, the court has agreed to hear 31 cases for the 2021-2022 term. Two cases were dismissed after they were accepted.

True or false: All justices must be present for the court to decide a case.

  1. True
  2. False

Choose an answer to find out!

Vacancies

President Joe Biden (D) inherited 46 Article III lifetime federal judicial vacancies requiring a presidential nomination when he was inaugurated on January 20, 2021. There were two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy in the U.S. Court of International Trade

The 46 vacancies represented roughly one-twentieth of all life-term judicial positions (5.29%). This was the lowest number of federal judicial vacancies at the beginning of a presidency since 1989, when George H.W. Bush inherited 37 vacancies.

Since 1981, every president has had more judicial vacancies six months into his administration than at the start of his administration.

The data above show that Biden has the third-lowest number of vacancies and the third-lowest vacancy percentage of any sitting president six months into his first term since the Reagan administration.

The number of judicial vacancies created during Biden’s first six months in office is the second-highest in our data (28), and is equal to the number of vacancies created during President George W. Bush’s first six months (28). President Barack Obama (29) had the highest number of judicial vacancies during his first six months as president.

As of July 19, there were 78 Article III vacancies in the federal judiciary out of 870 total Article III judgeships. Including non-Article III judges from the U.S. Court of Federal Claims and the United States territorial courts, there are 83 vacancies out of 890 active federal judicial positions.

Nominations

Since taking office, President Biden has nominated 30 individuals to federal judgeships. 

The data below compares Biden to his immediate predecessors in the number of Article III judicial nominations submitted to the U.S. Senate during his first six months in office. 

Biden has submitted nominations to fill more than 38% of federal judicial vacancies during his first six months in office. This represents the highest percentage since George W. Bush, and the most since 1981. President Bill Clinton (D) had the lowest percentage among the presidents included here, having submitted no Article III nominations during his first six months in office. 

For a list of individuals President Biden has nominated to Article III judgeships, click here.

Blue slips and the nomination process

A blue slip is a piece of paper a home-state senator returns to the Senate Judiciary Committee chair to express support for a federal judicial nominee. 

In February 2021, Sen. Dick Durbin (D-IL), became chair of the Senate Judiciary Committee for the 117th Congress. Durbin said in an interview with The New York Times that he would adhere to the precedent of his predecessors’–Sen. Lindsey Graham (R-S.C.) who served as the committee chair in the 116th Congress and Sen. Chuck Grassley (R-IA) who served as chair during the 115th Congress–in following the blue slip tradition for district court nominees but not for circuit court nominees. Durbin said he might reconsider following the blue slip tradition with district court nominees.

For more information on blue slips and federal judicial nominations, click here.

Confirmations

Since taking office, seven of President Biden’s nominees have been confirmed, and six have received their judicial commission. 

The table below compares Biden’s confirmations at this point in his administration with those of his predecessors:

Since 1981, Biden has the highest number of judicial confirmations in the first six months of his presidency (7). Neither President Clinton nor President Obama had any nominations confirmed by this point in their presidencies. President Donald Trump (R) is the only president included here to have a Supreme Court, a circuit court, and a district court nominee confirmed in his first six months in office.

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.

Lucy, I’m home! Welcome back, gentle readers, to our journey through federal judicial history. Pull up a seat on the davenport and enjoy today’s edition of Bold Justice, highlighting President Harry Truman’s (R) federal judicial nominees from 1945 to 1953.


During his time in office, 140 of President Truman’s judicial nominees were confirmed. Two nominations were withdrawn, the U.S. Senate rejected two nominations, and the Senate did not vote on 38 nominees. Among the most notable appointees were four Supreme Court Justices:

President Truman’s first Article III appointee was confirmed on May 15, 1945—Judge Donnell Gilliam to the U.S. District Court for the Eastern District of North Carolina. By the end of his first year in office, 16 of Truman’s nominees had been confirmed–one to the U.S. Supreme Court, five to U.S. circuit courts, nine to U.S. district courts, and one to the U.S. Customs Court. Truman averaged 18 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.

We’ll be back on August 9 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.



Republicans retain two Alabama state legislative seats in special elections on July 13

Special general elections were held in District 14 of the Alabama State Senate and District 73 of the Alabama House of Representatives on July 13. The primary was held on March 30, and the filing deadline to run passed on Jan. 26. The Republican primary for the House District 73 seat went to a primary runoff on April 27.

In District 14, April Weaver (R) defeated Virginia Applebaum (D) for the seat. Weaver received 89.6% of the unofficial election night vote. The seat was vacated by Cam Ward (R), who was appointed as director of the Alabama Bureau of Pardons and Paroles on Dec. 7. Ward had been a member of the state Senate since 2010. 

In District 73, Kenneth Paschal (R) defeated Sheridan Black (D) for the seat. Paschal received 74.9% of the unofficial election night vote. The seat was vacated by Matt Fridy (R), who was elected to the Alabama Court of Civil Appeals in Nov. 2020. Fridy had been a member of the state House since 2014. 

There is one additional special election scheduled in the state this year. Kenyatté Hassell (D) is facing Loretta Grant (R) in the Sept. 7 general election for the District 78 seat in the state House. Hassell progressed to the general election after winning the special Democratic primary runoff on June 22. Grant advanced to the general after the special Republican primary was canceled. 

The Sept. 7 election will mark the fifth state legislative special election in Alabama in 2021. This is a 10-year high for special elections in the state. The previous yearly high was four special elections in 2013. Alabama held a total of 23 special elections between 2010 and 2020. Alabama held only one special election in 2020 for House District 49.

Additional reading: 

Alabama State Senate District 14

Alabama House of Representatives District 73

Alabama House of Representatives District 78

Alabama state legislative special elections, 2013

Alabama state legislative special elections, 2020



Documenting America’s Path to Recovery #282: July 13, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • Court rulings in Maryland and Indiana requiring those states to resume participating in federal pandemic unemployment programs 
  • In-person education at K-12 schools in Illinois 
  • Vaccine distribution
  • Lawsuits about state actions and policies 
  • State-level mask requirements
  • COVID-19 emergency health orders
  • COVID-19 policy changes from this time last year 

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Thursday? Click here.

Since our last edition

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

Arizona (Republican trifecta): The state stopped participating in pandemic-related federal unemployment benefit programs on July 10. Gov. Doug Ducey (R) made the announcement May 13.

Colorado (Democratic trifecta): On July 8, Gov. Jared Polis (D) ended the coronavirus health emergency order. Polis also signed executive order focused on measures meant to help Colorado recover from the coronavirus.

Delaware (Democratic trifecta): The coronavirus state of emergency ended July 12. Gov. John Carney (D) signed an executive order setting the date for the emergency’s end on June 15.

Illinois (Democratic trifecta): On July 9, state Superintendent of Education Carmen Ayala issued a declaration requiring in-person learning for the 2021-2022 school year. Remote instruction will be available to students who are unable to receive a coronavirus vaccine.

Indiana (Republican trifecta): On Monday, July 12, the Indiana Court of Appeals ruled the state must comply with Superior Court Judge John Hanley’s June 25 emergency order to resume participation in federal pandemic unemployment programs. Gov. Eric Holcomb (R) ended the state’s participation in those programs on June 19. 

Maryland (divided government): On Tuesday, July 13, Baltimore Circuit Court Judge Lawrence Fletcher-Hill ruled the state must continue participating in federal pandemic unemployment programs. Gov. Larry Hogan (R) ended participation in those programs on July 3. The programs are scheduled to end in September. Hogan said he would not challenge the ruling. 

Rhode Island (Democratic trifecta): On July 6, Gov. Dan McKee (D) signed an executive order ending the statewide mask requirement for vaccinated and unvaccinated individuals.

Vaccine distribution

We last looked at vaccine distribution in the July 8 edition of the newsletter. As of July 12, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

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 1,830 lawsuits, in 50 states, dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 557 of those lawsuits. 
    • Since July 6, we have added five lawsuits to our database. We have also tracked an additional two court orders and/or settlements. 

Details:

  • Slidewaters LLC v. Washington State Department of Labor and Industries: On July 8, the U.S Court of Appeals for the Ninth Circuit ruled against a water park that had sued over Washington Gov. Jay Inslee’s (D) COVID-19 restrictions. The water park had attempted to remain open in violation of Inslee’s capacity restrictions and business closure orders. Slidewaters sued, alleging Inslee and the Washington State Department of Labor and Industries lacked authority to issue and enforce temporary emergency rules during the pandemic, and that their actions were unconstitutional violations of due process. Chief Judge Thomas Rice, of the U.S. District Court for the Eastern District of Washington, denied Slidewaters’ motion for an injunction, ruling that the infringement of civil liberties was “justified by the ongoing public health emergency caused by COVID-19.” On July 15, 2020, Slidewaters appealed that decision to the Ninth Circuit. The Ninth Circuit affirmed Rice’s decision and dismissed the case. Judge Richard R. Clifton, writing for a unanimous three-judge panel, said, “Defendants have the authority under Washington law to impose the restrictions and … doing so does not violate Slidewaters’ asserted rights under the U.S. Constitution.” The Ninth Circuit ruled the state’s actions were rationally connected to the legitimate state interest of mitigating the spread of COVID-19. Neither party has issued a statement on the decision. Clifton is an appointee of President George W. Bush (R).

State mask requirements

We last looked at face coverings in the July 6 edition of the newsletter. Since then, a statewide mask order expired in Rhode Island.

COVID-19 emergency health orders

Read more: State emergency health orders during the coronavirus (COVID-19) pandemic, 2021

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources, like stockpiles of medical goods and equipment, unavailable to them during non-emergencies and temporarily waive or suspend certain rules and regulations. 

Overview: 

  • COVID-19 emergency orders have expired in 25 states. Emergency orders remain active in 27 states.
  • Since July 6, three states have ended their statewide COVID-19 emergencies. 

Details:

  • On July 13, Delaware Gov. John Carney (D) ended the statewide COVID-19 state of emergency. 
  • On July 8, Colorado Gov. Jared Polis (D) ended the statewide COVID-19 health emergency.
  • On July 6, Alabama Gov. Kay Ivey (R) terminated the statewide COVID-19 emergency.

This time last year: Monday, July 13, and Tuesday, July 14, 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.

Monday, July 13, 2020:

  • Stay-at-home orders and reopening plans:
    • New Mexico Gov. Michelle Lujan Grisham (D) reimposed some coronavirus restrictions due to increasing coronavirus cases, including prohibiting indoor dining at bars and restaurants. Indoor dining had been permitted since June 1. State parks were closed to out-of-state visitors and visitors who could not prove their residency. The state’s mask requirement expanded to include anyone exercising in a public space.
  • Travel restrictions:
    • Hawaii Gov. David Ige (D) extended the quarantine requirement for out-of-state travelers through Sept. 1. Previously, Ige said a new program would take effect Aug. 1 that would allow visitors to present a negative coronavirus test to avoid the quarantine requirement. That program would not start until Oct. 15.
  • Mask requirements:
    • Louisiana Gov. John Bel Edwards (D) issued an executive proclamation establishing a statewide face-covering requirement in any indoor or outdoor public space. The order exempted children under the age of eight, as well as individuals with medical conditions preventing them from wearing face coverings. The order also allowed parishes to opt out if they maintained a COVID-19 incidence rate of fewer than 100 cases per 100,000 people for the previous two weeks.
  • State court changes:
    • Iowa courtrooms reopened to in-person proceedings with restrictions. Social distancing of at least six feet was required. The state set a goal of resuming jury trials on Sept. 14.

Tuesday, July 14, 2020

  • Stay-at-home orders and reopening plans:
    • North Carolina Gov. Roy Cooper (D) announced the state would remain in Phase Two of reopening until Aug. 7. Previously, the state had been scheduled to enter Phase Three on July 17. 
    • West Virginia Gov. Jim Justice (R) reduced the statewide limit on gatherings from 100 people to 25. Justice also announced that bars in Monongalia County would also be closed for 10 days in response to rising coronavirus cases.
  • Travel restrictions:
    • Govs. Ned Lamont (D-Conn.), Phil Murphy (D-N.J.), and Andrew Cuomo (D-N.Y.) announced that New Mexico, Ohio, Wisconsin, and Minnesota had been added to the joint travel advisory originally announced June 24, requiring travelers from those states to self-quarantine for 14 days upon arriving in the tristate area. 
  • Election changes:
    • Vermont Secretary of State Jim Condos (D) announced the state would send mail-in ballot request forms to all eligible voters in the Aug. 11 primary election.


Bold Justice: Federal Judicial Vacancy Count released for July 1

Bold Justice

Welcome to the July 12 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

SCOTUS may be in its summer recess but we are gaveling in to bring you all the latest court activity on the docket: the end of SCOTUS’ 2020 term, the 2021 term on the horizon, and the first federal judicial confirmations of the Biden administration. 

Stay up to date on the latest news by following Ballotpedia on Twitter or subscribing to the Daily Brew.

Grants

SCOTUS accepted 13 cases to its merits docket since our June 7 issue. To date, the court has agreed to hear 31 cases for the upcoming 2021-2022 term, which is scheduled to begin on October 4, 2021. 

Click the links below to learn more about these cases:

Opinions

SCOTUS issued opinions in 26 cases since our June 7 issue. The court issued 67 opinions during its 2020-2021 term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument.

Click the links below to review the court’s rulings in the most recently decided cases:

June 7, 2021

June 10, 2021

June 14, 2021

June 17, 2021

June 21, 2021

June 23, 2021

June 25, 2021

June 28, 2021

  • Lombardo v. City of St. Louis, Missouri (Decided without argument)
  • Pakdel v. City and County of San Francisco, California (Decided without argument)

June 29, 2021

July 1, 2021

July 2, 2021

  • Dunn v. Reeves (Decided without argument)

Upcoming SCOTUS dates

The court held its final conference and issued its final opinions for the term on July 1, 2021. The court issued its final order list on July 2, 2021, before starting its summer recess. The court will resume hearing arguments in October.

True or false: have there ever been any Supreme Court justices with the same name?

  1. True
  2. False

Choose an answer to find out!

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 June 1 to July 1. 

Highlights

Vacancy count for July 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

Three 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.

The following chart tracks the number of vacancies in the United States Courts 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 July 1, 2021.

New nominations

President Biden has announced 11 new nominations since the May 2021 report.

New confirmations

As of July 1, 2021, the Senate has confirmed seven of President Biden’s judicial nominees—five district court judges and two appeals court judges—since January 2021.

The first confirmations occurred on June 8, when Julien Neals and Regina Rodriguez were confirmed to their respective courts. Ketanji Brown Jackson, who was confirmed on June 14, was the first confirmed nominee to receive her judicial commission. Jackson was commissioned on June 17.

Since 1981, only two other presidents had confirmed Article III judicial nominees by July 1 of their first year in office: Presidents Donald Trump (R) and George H.W. Bush (R), each with four confirmed 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 this list for updates on federal judicial nominations.

Hello, gentle readers! Put a quarter in the jukebox and grab a malted milkshake with me as we be-bop-a-Lula our way through federal judicial history. Today’s edition of Bold Justice highlights President Dwight Eisenhower’s (R) federal judicial nominees from 1953 to 1961.


During his time in office, 175 of President Eisenhower’s judicial nominees were confirmed. One nominee declined the nomination, two were withdrawn, and the U.S. Senate did not vote on 26 nominees. Among the most notable appointees were five Supreme Court Justices:

President Eisenhower’s first Article III appointee was confirmed on April 23, 1953—Judge Lester Cecil to the U.S. District Court for the Southern District of Ohio. By the end of his first year in office, nine of Eisenhower’s nominees had been confirmed–all nine were confirmed to U.S. district courts. Eisenhower averaged 22.7 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.

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

Contributions

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



Documenting America’s Path to Recovery #266: June 14, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at:

  • Mask requirements, business restrictions easing in California
  • Statewide coronavirus emergency orders extended in Maine and Delaware
  • COVID-19 policy changes from this time last year 

We are committed to keeping you updated on everything from mask requirements to vaccine-related policies. We will keep you abreast of major developments—especially those affecting your daily life. Want to know what we covered Friday? Click here.

The next 24 hours

What is changing in the next 24 hours?

California (Democratic trifecta): 

  • Gov. Gavin Newsom (D) will end the Blueprint for a Safer Economy and lift most state restrictions on business activity statewide June 15. Social distancing restrictions and all remaining capacity limits will end. Indoor events with more than 5,000 people will have to require proof of vaccination or a recent negative coronavirus test from all attendees.
  • Fully vaccinated residents will be exempt from the statewide mask mandate starting June 15. Fully vaccinated residents still have to wear masks on public transit (and in transportation hubs like airports), in indoor childcare and K-12 school settings, in healthcare settings, and in congregate settings (including prisons and homeless shelters). Masks will still be required for unvaccinated people in all indoor public settings and businesses. 

Since our last edition

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

Alaska (divided government): The state ended its participation in pandemic-related federal unemployment benefit programs June 12. Gov. Mike Dunleavy (R) made the announcement May 14.

Delaware (Democratic trifecta): Gov. John Carney (D) extended the state’s coronavirus emergency order until July 13.

Iowa (Republican trifecta): The state ended its participation in pandemic-related federal unemployment benefit programs June 12. Gov. Kim Reynolds (R) made the announcement May 10.

Kansas (divided government): All state government offices will return to in-person operations starting June 13. Masks will still be required in state buildings.

Maine (Democratic trifecta): Gov. Janet Mills (D) extended the state’s coronavirus emergency order until June 30. Mills said she will end the coronavirus emergency on that day. 

Mississippi (Republican trifecta): The state ended its participation in pandemic-related federal unemployment benefit programs June 12. Gov. Tate Reeves (R) made the announcement May 10.

Missouri (Republican trifecta): The state ended its participation in pandemic-related federal unemployment benefit programs June 12. Gov. Mike Parson (R) made the announcement May 11. 

North Carolina (divided government): On June 11, Gov. Roy Cooper (D) issued an executive order extending certain pandemic-related measures, including state eviction prohibitions and face-covering requirements in certain settings.

Vermont (divided government): 

  • On June 14, Gov. Phil Scott (R) lifted all remaining coronavirus restrictions in the state, including capacity restrictions and mask requirements for unvaccinated individuals. The restrictions were lifted after 80% of eligible state residents received at least one dose of a coronavirus vaccine. Reopening had initially been scheduled for July 4.
  • On June 11, Gov. Phil Scott (R) announced there would be new walk-in vaccination clinics open statewide over the weekend. A full list of vaccination sites can be found here.

Virginia (Democratic trifecta): On June 11, Gov. Ralph Northam (D) announced a $3 million pilot for the Return to Earn Grant Program, which would match payments from certain small businesses to provide newly hired employees with a bonus of up to $1,000.

Washington (Democratic trifecta): On June 10, Gov. Jay Inslee (D) extended a proclamation allowing for the expansion of the Family Emergency Assistance Program, allowing individuals and families without children to apply for benefits through the program.

This time last year: Monday, June 15, 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.

Monday, June 15, 2020:

  • Stay-at-home orders:
    • New Hampshire’s statewide stay-at-home order expired on June 15. Gov. Chris Sununu (R) issued Emergency Order #17 on March 26. The order directed individuals in the state to stay at home unless performing essential activities and placed restrictions on non-essential businesses.
  • Travel restrictions:
    • Arkansas Secretary of Health Nathaniel Smith allowed the 14-day travel quarantine requirement for out-of-state travelers coming from coronavirus hot spot areas—including New York and New Jersey—to expire. 
  • Election changes:
    • United States District Court for the Northern District of Alabama Judge Abdul Kallon issued a preliminary injunction barring election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections.


What comes next in the Newsom recall effort: Today in the Daily Brew (06/10/21)

Welcome to the Thursday, June 10, Brew. Here’s what’s in store for you as you start your day:

  1. What’s next in the recall effort of California Gov. Gavin Newsom?
  2. Redistricting review: Illinois enacts state legislative, supreme court maps
  3. Legislative term explained: What is a Christmas tree bill?

What’s next in the recall effort of California Gov. Gavin Newsom?

Tuesday—June 8—was the deadline for voters who signed a petition to recall California Gov. Gavin Newsom (D) to request to have their signatures removed. County election offices now have 10 business days—until June 22—to report the number of remaining signatures to the California secretary of state. If after that period, at least 1,495,709 signatures remain, the recall election will proceed to a budgeting phase. Recall organizers submitted 1,719,943 valid signatures. 

According to Sacramento-based TV station KCRA-TV, the California Department of Finance will have 30 days to develop estimated costs of a recall election. Once that estimate is complete, the state’s Joint Legislative Budget Committee will review it and report back to the secretary of state’s office. After that, the lieutenant governor—Eleni Kounalakis (D)—is required to schedule a recall election between 60 and 80 days after the signatures are certified. By law, she may choose to consolidate the recall with the next regularly scheduled election if that election occurs within 180 days of certification.

These steps don’t have to take the full amount of time allotted to them; each phase could be completed sooner, which would start the time allocated to the next part of the process. This means that the recall election could occur between August and November.

A recall election would present voters with two questions. The first would ask whether Newsom should be recalled from office. The second would ask who should succeed Newsom if he is recalled. A majority vote is required on the first question for the governor to be recalled. The candidate with the most votes on the second question would win the election with no majority required. Newsom was elected as California’s governor in 2018 with 61.9% of the vote. 

If Newsom is recalled, his replacement would serve the remainder of his current term, which expires on Jan. 2, 2023. The next regularly scheduled election on Nov. 8, 2022, would determine the state’s next governor.

Keep reading

Redistricting review: Illinois enacts state legislative, supreme court maps 

Illinois Gov. J.B. Pritzker (D) signed legislation on June 4 establishing new maps for the state Senate, the state House of Representatives, and the state Supreme Court. Illinois is the first state to enact new district maps in this redistricting cycle.

The General Assembly approved the redistricting plans on May 28. In both chambers, the vote split along partisan lines, with all Democrats voting ‘yea’ and all Republicans present voting ‘nay.’ Illinois is a Democratic trifecta, meaning that Democrats control the governorship and majorities in both chambers of the General Assembly.

Because the U.S. Census Bureau does not expect to deliver granular redistricting data to the states until mid-August, and in light of the state constitution’s June 30 deadline for state legislative redistricting, Illinois lawmakers used population estimates from the American Community Survey to draft the new maps. The state constitution sets no deadline for congressional redistricting.

In 33 states, state legislatures play the dominant role in state legislative redistricting. Commissions draw state legislative district lines in 14 states. In three states, hybrid systems are used.

Keep reading 

What is a Christmas tree bill?

Do you know the meaning and history of the term, Christmas tree bill? You may have seen it in news stories in recent months. I didn’t, so here’s a brief explanation. 

The U.S. Senate glossary defines the term Christmas tree bill as “informal nomenclature for a bill on the Senate floor that attracts many, often unrelated, floor amendments. The amendments which adorn the bill may provide special benefits to various groups or interests.”

The first use of the term Christmas tree bill is attributed to Sen. Clinton Anderson (D), who represented New Mexico from 1949 to 1973. In 1956, Anderson used the term to refer to a farm bill with over one hundred amendments. “This bill gets more and more like a Christmas tree,” Anderson said, “there’s something in it for nearly everyone.” 

Amending a bill at the end of a legislative session, or just before extended breaks or holiday recesses, can be a strategy to accelerate the approval of a bill that has broad consensus. The result is a bill that is an end-of-session catch-all for policies, regulations, and fiscal measures that would otherwise not advance.

Want to read more? Click the link below for more history, some examples, and instances of how the term is used in politics and popular culture.

Keep reading 



Economy and Society: SEC halts enforcement of proxy advisory amendments


ESG Developments This Week

In Washington, D.C.

SEC halts enforcement of proxy advisory amendments

In July 2020, the Securities and Exchange Commission amended several rules under the Securities and Exchange Act of 1934, codifying 2019 regulatory guidance requiring greater scrutiny of Proxy Advisory Services. The amendments went into effect in November 2020 and were scheduled to begin mandatory compliance on December 1, 2021. Last week, newly installed SEC Chairman Gary Gensler issued a statement directing Commission staff to reconsider the guidance and the amendments, which, in turn, caused the Commission’s Division of Corporate Finance to issue its own statement, effectively halting enforcement of the amendments:

“Gary Gensler, the new chairman of the U.S. Securities and Exchange Commission, released a statement on June 1, 2021, directing SEC staff to consider revisiting its interpretation and guidance from September 2019 regarding the application of the proxy rules to proxy advisors (the 2019 Guidance), and the amendments that it adopted in July 2020 that modified Rules 14a-1(l), 14a-2(b) and 14a-9 under the Securities Exchange Act of 1934 (the 2020 Amendments)….

In response to Chairman Gensler’s directive, the Division of Corporation Finance issued a public statement that it would consider recommending that the SEC revisit the 2019 Guidance and the 2020 Amendments. Notably, the Division of Corporation Finance also stated that it would not recommend enforcement action based on the 2019 Guidance or the 2020 Amendments while the SEC considers further regulatory action. In addition, the Division confirmed that, in the event that the 2020 Amendments remain in place with the current December 1, 2021 compliance date, the staff will not recommend any enforcement action based on those conditions for a reasonable period of time after any resumption by ISS of its litigation challenging the 2020 Amendments and the 2019 Guidance.

It is uncertain how or when the SEC will move forward to review and perhaps revise the 2019 Guidance and 2020 Amendments, although it appears that a majority of SEC members do not support them. In the interim, for however long that interim period may be, the Division of Corporation Finance’s refusal to seek to enforce the 2019 Guidance, and 2020 Amendments once they become applicable, would seem to be tantamount to their suspension or repeal.”

The ESG impact of the SEC’s decisions is potentially significant, as the two largest proxy advisory servicesInstitutional Shareholder Services (ISS) and Glass-Lewisare considered ESG allies in many proxy ballot measures, recommending their clients vote their proxies in favor of what are deemed ESG-friendly petitions and executive and director decisions.

SEC Commissioner and former acting-Chair, Allision Herren Lee also recommended that Commission staff examine and consider revisions to another amendment approved during the Trump administration, one dealing with the amount of stock that must be held and for how long it must be held before filing a first-time shareholder proposal. Commissioner Gensler has yet to announce his plans for this amendment.

On Wall Street and in the private sector

Activist hedge fund wins third seat on Exxon board

As noted in last week’s edition of this newsletter, the activist hedge fund Engine No. 1 challenged three seats of Exxon’s board of directors on this year’s proxy statement and, as of Exxon’s annual meeting (on May 26) and last week’s publication date (on June 1), it was clear that the activist upstarts had won two of those three seats. On Wednesday, June 2, Exxon updated the vote count, resulting in a larger victory for Engine No. 1:

“Exxon Mobil Corp (XOM.N) shareholders elected a third director nominated by hedge fund Engine No. 1 to the oil company’s board, the company said on Wednesday, extending the firm’s upset victory at one of America’s top energy corporations.

The election was a shock to an energy industry struggling to address growing investor concerns about global warming and a warning to Exxon managers that years of weak returns were no longer acceptable.

Engine No. 1 nominee Alexander Karsner, a strategist at Google owner Alphabet Inc , won the fund’s third seat out of its 12-member board, according to a regulatory filing.”

That same day, Ursula Burns, an Exxon director who was retained, spoke remotely to the Dallas Federal reserve and called the vote a watershed moment in shareholder activism and acknowledging that, in her words, “the timing was perfect” for such an effort by an environmentally focused activist group like Engine No. 1.

ESG: hot job sector

According to The Financial Times, the rapid growth of ESG as an investment scheme and a business-pressure tactic has turned those deemed to possess expertise in Environmental, Social, and Corporate Governance matters into the hottest commodity in the job market. In so doing, ESG is proving to be impactful well beyond the bounds of corporate finance:

“More than one in five of the world’s largest companies have made some form of commitment to reaching net zero emissions and investors are sharpening their focus on the social impact of companies they back, creating a boom in the market for specialists in corporate sustainability.

“The bottom line is demand far outstrips supply and so there is going to be a real war for talent and that will include compensation,” said Sarah Galloway, co-leader of recruiter Russell Reynolds Associates’ sustainability practice.

Demand for ESG experts is booming across professional services, including at management consultancies, boutique advisory firms and property companies, recruiters and executives said….

Experts are also being lured by private equity funds to fill roles as chief sustainability officer and head of ESG with salaries varying widely, recruiters said.

“Private equity has realised you can’t IPO a business unless it’s got a really strong sustainability or ESG story so they are all hiring heads of ESG or sustainability at very senior levels . . . to oversee their portfolios,” said Galloway….

Growing expectations that auditors will scrutinise non-financial metrics as well as companies’ accounts are also driving demand for new expertise at accounting firms, which are recruiting specialists and providing training to auditors.

“ESG metrics and reporting are fast becoming a business imperative, particularly due to increased scrutiny from investors, and we intend to move ahead of regulatory reforms by expanding our capability and capacity in this area,” said Scott Knight, head of audit at BDO, the UK’s fifth-largest accounting firm.”

Chinese ESG?

Over the weekend, the South China Morning Post argued that the ESG movement in Asia, which has been hot, but not as hot as in Europe and the United States, would, in its words, take off:

“Environment, social and governance disclosures by mainland China-listed companies have improved but remain short of the needs of international fund managers, who are increasingly pushed by asset owners to embed ESG considerations into investment decisions, according to asset managers.

Engagement by foreign investors has already seen some companies enhance disclosures, while impending regulatory requirements would improve it further, they said….

Funds managed with strategies linked to companies’ ESG performance doubled in Asia to US$25 billion last year from US$12 billion in 2019, according to JPMorgan.

“We believe this could quite possibly double again this year, judging by the amount of investor interest and momentum we are seeing,” said Elaine Wu, head of ESG and utilities research in Asia excluding Japan at JPMorgan. ESG funds focusing on the region have outperformed global ESG funds by 2 to 5 percentage points in the past two years, she added.

Currently, mainland-listed firms are encouraged by the CSRC to voluntarily publish annual sustainability or social responsibility reports. These disclosures focus mostly on environmental sustainability and philanthropic contributions.

Over 1,000 or 27 per cent of these companies issued ESG reports in 2020, with 86 percent of the largest 300 mainland-listed stocks by market value doing so – up from 49 per cent in 2010, said Felix Lam, head of investment stewardship for Asia-Pacific excluding Japan at JP Morgan Asset Management.”

ESG down under

ESG is booming in Europe, in the United States, in Asia, and now, apparently, in Australia as well. Bloomberg reported last week on Australian Ethical Investment, Ltd., noting the company’s good fortunes of late and the concomitant boom in Australian ESG:

“There’s been a seismic shift in the interest and demand for this style of investing,” John McMurdo, chief executive officer at Australian Ethical Investment Ltd., said in an interview in Sydney Thursday. “There is significant momentum.”…

Funds and strategies that focus on environmental, social and governance factors are booming worldwide amid an uptake from investors and companies to own more sustainable investments. McMurdo says the addressable market — the audience — for his funds shot up to between 60%-80% of the Australian population, up from around 15% just two years ago….

“There’s a sort of myth that you have to give up investment performance to invest in an ethical way,” McMurdo said. “That myth has been well and truly busted.”

In the spotlight

Alignment theory in ESG, again

In several past issues, this newsletter has reported on various efforts to connect executive compensation to ESG performancemostly in Canada and the EU but occasionally in the United States as well. Last Tuesday, The Wall Street Journal reported on private equity firms that are trying, despite complications, to link compensation to ESG performance metrics, which would change the business in significant ways:

“Private-equity investors are considering a novel strategy to make sure the firms they back are good corporate citizens: Tie their promises to their pay.

More institutions are weighing whether to link asset managers’ compensation to performance on environmental, social and governance issues, say people who consult with investors and help private-equity firms raise money.

These efforts—which are more advanced in Europe than in the U.S.—would represent a radical change in how private-equity managers get paid. For decades, buyout managers have received their main compensation through a 20% share of the profits when an investment is sold, referred to as a manager’s carried interest.

Advocates of linking pay to ESG say it shows firms mean business. Private-equity firms regularly talk up their ESG policies, but there is little data on how well the industry as a whole performs on these issues.

“Our carry-link shows we put our money where our mouth is,” Vishesh Srivastava, managing partner of Future Business Partnership, a European consumer-specialist impact-investing firm, wrote in an email….”

Notable quotes

“My sources inside BlackRock say that over the past year, Fink has transformed the place into an ESG cultural center. Fink talks ESG nonstop at company town halls. Seminars on ESG investing seem to take place every week. An executive named Brian Deese was promoted to push money managers to consider ESG in all their investment decisions.

Deese is now one of several BlackRock officials who hold key positions in the Biden administration, as director of the president’s National Economic Council.”

Charles Gasparino, “BlackRock’s ‘No. 1’ goal in ‘woke’ investing: Huge ESG-funds haul,” The New York Post, June 5, 2021