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We #SCOTUS and you can, too!

May sitting

The Supreme Court will hold its May argument sitting on May 4, hearing one case in a one-hour session. In keeping with each sitting of this term, the court will hear arguments remotely and will provide live audio to the public.

Terry v. United States concerns sentencing reductions for crack cocaine offenses. In 2008, Tarahrick Terry was convicted of and pled guilty to possessing cocaine base, also referred to as “crack cocaine,” with the intent to distribute. In 2010, Congress passed the Fair Sentencing Act, modifying the weight limits for drug offenses. In 2018, Congress enacted the First Step Act, which defined “covered offenses” including crack cocaine offenses and set out rules for making relevant sentencing reductions. Terry petitioned the U.S. district court to reduce his sentence. The district court ruled that his offenses were not covered and were not eligible for reduction. On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the district court’s judgment. Terry petitioned the Supreme Court to review the lower court’s findings.

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 the March and April sittings earlier in the term 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 the 1968 October Term.

Grants

SCOTUS accepted three cases to its merits docket since our April 26 issue. The court has granted review in a total of 14 cases for the upcoming 2021-2022 term, scheduled to begin on October 4, 2021. 

• New York State Rifle & Pistol Association Inc. v. Corlett concerns a person’s Second Amendment right to carry a firearm for self-defense. The question presented to the court is, “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” The case originated from the U.S. Court of Appeals for the 2nd Circuit.
• Houston Community College System v. Wilson concerns free speech protections and limitations on an elected body’s authority to censure a member for their speech. The question presented to the court asks, “Does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member’s speech?” The case originated from the U.S. Court of Appeals for the 5th Circuit.
• United States v. Zubaydah concerns the state-secrets privilege. The question the court will decide is, “Whether the court of appeals erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities.” Zubaydah came from the U.S. Court of Appeals for the 9th Circuit.

Opinions

SCOTUS issued two opinions since our April 26 issue and has issued 32 opinions to date this term. Seven cases were decided without argument.

April 26

• Alaska v. Wright originated from the U.S. Court of Appeals for the 9th Circuit. In 2009, an Alaska state court convicted Sean Wright on 13 counts of sexually abusing a minor. Wright finished serving his sentence in 2016 and then moved to Tennessee. In Tennessee, Wright did not register as a sex offender, violating federal law. Wright pleaded guilty to one count of failing to register and filed a petition for a writ of habeas corpus with the U.S. District Court for the District of Alaska. Wright argued the state court had acted unconstitutionally in affirming his conviction and sentencing. The district court denied the motion since Wright’s sentence had expired and he was no longer in state custody. On appeal, the U.S. Court of Appeals for the 9th Circuit reversed, holding that Wright could challenge his state conviction even if he’d completed the sentence.

In a unanimous per curiam ruling decided without argument, SCOTUS vacated the 9th Circuit’s ruling and remanded the case for further proceedings consistent with the opinion. Per curiam rulings are unsigned and are delivered by the court as a whole.

April 29

• Niz-Chavez v. Garland originated from the U.S. Court of Appeals for the 6th Circuit and was argued before SCOTUS on November 9, 2020. The case concerned the government’s ability to serve a notice to appear to a non-citizen, and the immigration stop-time rule, where a non-citizen’s accrual of continuous residence ends when that person is served with a notice to appear. The question presented to SCOTUS asked: whether the government must provide the time and place of deportation hearings in a single Notice to Appear document in order to trigger the stop-time rule under 8 U.S.C. § 1229(a), or whether the government can trigger the rule by providing the information in multiple documents.

In a 6-3 ruling, SCOTUS reversed the 6th Circuit’s decision. The court held that a notice to appear sufficient to trigger the stop-time rule is a single document containing all of the information about an individual’s removal hearing specified in §1229(a)(1). Justice Neil Gorsuch delivered the majority opinion of the court. Justice Brett Kavanaugh filed a dissenting opinion, joined by Chief Justice John Roberts and Justice Samuel Alito.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• May 3: SCOTUS will release orders. 
• May 4: SCOTUS will hear arguments in one case.
• May 13: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

During the October 2020 Term, Chief Justice John Roberts filed his first lone dissent in a case since joining the court in 2005. A lone dissent is when one justice votes against the court’s majority ruling. 

By contrast, one of Chief Justice Roberts’ predecessors was known for solitary dissents, earning the nickname “The Lone Ranger”. Who was it?

1. Warren Burger
2. Earl Warren
3. William Rehnquist
4. Antonin Scalia

Choose an answer to find out!

Federal court action

Nominations and confirmations

President Joe Biden (D) nominated three individuals to Article III judgeships on April 29:

• David Estudillo, to the United States District Court for the Western District of Washington
• Tana Lin, to the United States District Court for the Western District of Washington
• Christine O’Hearn, to the United States District Court for the District of New Jersey

On April 28, the Senate Judiciary Committee held hearings for five of Biden’s nominees:

• Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit
• Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit
• Julien Xavier Neals, to the United States District Court for the District of New Jersey
• Zahid Quraishi, to the United States District Court for the District of New Jersey
• Regina Rodriguez, to the United States District Court for the District of Colorado

As of this writing, the U.S. Senate has not yet confirmed any of President Biden’s judicial nominees.

Vacancies

The federal judiciary currently has 78 vacancies, 74 of which are for lifetime Article III judgeships. 

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

Our journey through time continues, gentle reader, to an era of massive change, and not a little bit of turmoil. Yes, the time is 1969 to 1974, and this week’s edition of Bold Justice revisits President Richard Nixon’s (R) judicial nominees.

During his two terms in office, President Nixon successfully nominated 227 judges who were later confirmed and commissioned to the federal bench. One nominee withdrew and the U.S. Senate did not vote on six of his nominees. 

Nixon made four appointments to the Supreme Court: 

• Warren Burger, nominated and joined the court in 1969
• Harry Blackmun, nominated and commissioned in 1970 
• Lewis Powell, nominated and commissioned in 1971
• William Rehnquist, nominated and commissioned in 1971

President Nixon made his first Article III nomination on February 20, 1969, nominating James Battin to the U.S. District Court for the District of Montana. By the end of his first year in office, 26 of Nixon’s nominees had been confirmed. Throughout his tenure as president, Nixon averaged 42.3 judicial appointments per year. By contrast, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year. 

Looking ahead

We’ll be back on May 10 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 so you don’t have to

The Supreme Court will begin its February sitting during the week of February 22 via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19. SCOTUS will hear arguments in 11 cases for a total of six hours of oral argument.

SCOTUS has agreed to hear 63 cases during its 2020-2021 term. Twelve of those were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

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

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

February 22

• Florida v. Georgia concerns the apportionment of waters of the Apalachicola-Chattahoochee-Flint River Basin. It came to the court under its original jurisdiction over disputes between states. 

In 2013, Florida asked the U.S. Supreme Court for permission to file a complaint, claiming Georgia was using more than its equitable share of the Apalachicola-Chattahoochee-Flint (ACF) River Basin waters. Florida claimed its Apalachicola region needed more water to sustain its ecosystems and fishing industries and asked the court to cap Georgia’s consumption.

The case was first argued before SCOTUS on January 8, 2018, during the October 2017 term. On June 27, 2018, the court remanded the case back to the lower court in a 5-4 decision written by Justice Stephen Breyer. Click here for more information about that ruling.

On October 5, 2020, the court issued an order indicating plans to hear the case “for oral argument in due course” during the 2020-2021 term. On December 31, 2020, the court scheduled the case’s second argument for February 22, 2021.

The questions presented: Is Florida entitled to equitable use of the ACF River Basin waters and should its request for an injunction to force Georgia to allow an adequate flow of freshwater be sustained?

• Note: Trump v. Sierra Club was removed from the argument calendar after the court granted the Biden administration’s request to do so, pending further briefings on the Biden administration’s policy changes related to the government’s arguments in the case.

February 23

• Barr v. Dai (Consolidated with Barr v. Alcaraz-Enriquez) concerns the Immigration and Nationality Act (INA). Specifically, the credibility of an immigrant’s testimony before an immigration judge, the Board of Immigration Appeals, and U.S. Circuit Courts of Appeal. 

The case originated in the U.S. Court of Appeals for the 9th Circuit and was consolidated with Barr v. Alcaraz-Enriquez. Both cases involve immigrants—Ming Dai, a native and citizen of China, and Cesar Alcaraz-Enriquez, a native and citizen of Mexico—who appealed their deportation orders. Immigration judges ruled against halting the deportations. In each case, the Board of Immigration Appeals (BIA) upheld the immigration judges’ decisions. Dai and Alcaraz-Enriquez appealed to the 9th Circuit. 

In Barr v. Dai, the 9th Circuit overturned the BIA and the immigration judge’s ruling, concluding Dai was entitled to withholding of removal proceedings. In Barr v. Alcaraz-Enriquez, the 9th Circuit granted the appeal in part and remanded the case to the BIA to reconsider Alcaraz-Enriquez’s withholding of removal claim. The U.S. government appealed to the U.S. Supreme Court.

The questions presented: “1. Whether a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination.

“2. Whether the court of appeals violated the remand rule as set forth in INS v. Ventura, 537 U.S. 12 (2002) (per curiam), when it determined in the first instance that respondent was eligible for asylum and entitled to withholding of removal.”

February 24

• Lange v. California concerns the Fourth Amendment to the U.S. Constitution and police entry into a private residence without a warrant. The case originated from the California First District Court of Appeal.

In Sonoma, California, Arthur Lange was driving home. California highway patrol officer Aaron Weikert pursued Lange to conduct a traffic stop and followed him to his home. Once Lange pulled into his driveway, Weikert activated his overhead lights. Lange alleged he did not see Weikert and closed his garage door behind him. Weikert entered the garage, stated he smelled alcohol on Lange’s breath and charged Lange with a misdemeanor offense–driving under the influence. 

At trial, Lange claimed Weikert’s entry into his home violated the Fourth Amendment since Weikert did not have a warrant to enter the home. Lange’s attorney moved to suppress a video recording of the incident. The trial court concluded the officer had probable cause, denied the motion to suppress, and convicted Lange. Later, a civil court ruled Lange’s arrest was unlawful and an appellate court ruled the arrest was lawful. On appeal to the California First District Court of Appeal, the court affirmed the conviction. 

The question presented: “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.”

Opinions

SCOTUS has not issued any additional rulings since our February 8 issue. The court has issued 15 opinions in cases so far this term. 31 cases are still under deliberation. 

Grants

SCOTUS has not granted review in any additional cases since our February 8 issue. 

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

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

SCOTUS trivia

Who is the longest-serving Supreme Court justice to date? 

1. Hugo Black

2. William O. Douglas

3. Stephen J. Field

4. John Paul Stevens

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 February 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 62 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, if you prefer, we also maintain a list of individuals nominated by the president.

Spotlight: Presidential nominations to federal courts

This edition of Bold Justice marks the beginning of our journey back in time to review federal judicial nomination activity during previous presidential administrations. Today, we’re taking a look at President Donald Trump’s (R) judicial nominees.

During his term of office, President Trump nominated 274 individuals to federal judgeships. Trump made 245 judicial appointments where the nominee joined the court. Of those appointments, 234 were Article III judges. Among the most notable of these are Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. 

When Trump assumed office in January 2017, he inherited 108 life-term vacancies out of 870 total Article III judgeships (12.41%), the second-highest number of such vacancies since the inauguration of President Bill Clinton (D) in January 1993. Of his six immediate predecessors, Trump was the only president who inherited a vacancy on the U.S. Supreme Court. The last president to inherit a SCOTUS vacancy was James Garfield, who took office in 1881. 

Of his Article III appointees–not including Supreme Court nominations–Trump appointed 54 judges to the United States Courts of Appeal, 174 judges to federal district courts, and three judges to the U.S. Court of International Trade. 

Looking ahead

We’ll be back on March 1 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

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

Welcome to the February 8 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. 

For all of us who love following the courts, February has plenty to offer–like a box of chocolates and a rose bouquet. The Supreme Court has been a flurry of activity despite being out of session and Ballotpedia has begun tracking federal judicial vacancies, nominations, and confirmations for the Biden administration. 

Long-term subscribers are familiar with our detailed tracking of the nominations during the Trump administration. Readers can expect the same detailed data for the Biden administration.

Follow us on Twitter or subscribe to the Daily Brew to keep up with all the latest news!

We #SCOTUS, so you don’t have to

The Supreme Court will begin its February sitting during the week of February 22 via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19. SCOTUS will hear arguments in 10 cases for a total of six hours of oral argument.

SCOTUS has agreed to hear 63 cases during its 2020-2021 term. Twelve of those were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

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

Click the links below to read more about the specific cases before SCOTUS during its January sitting.

February 22

• Florida v. Georgia concerns the apportionment of waters of the Apalachicola-Chattahoochee-Flint River Basin. It came to the court under the court’s original jurisdiction over disputes between states. 

In brief: In 2013, Florida asked the U.S. Supreme Court for permission to file a complaint, claiming Georgia was using more than its equitable share of the Apalachicola-Chattahoochee-Flint (ACF) River Basin waters. Florida claimed its Apalachicola region needed more water to sustain its ecosystems and fishing industries and asked the court to cap Georgia’s consumption.

The case was first argued before SCOTUS on January 8, 2018, during the October 2017 term. On June 27, 2018, the court remanded the case back to the lower court in a 5-4 decision written by Justice Stephen Breyer. Click here for more information about that ruling.

On October 5, 2020, the court issued an order indicating plans to hear the case “for oral argument in due course” during the 2020-2021 term. On December 31, 2020, the court scheduled the case’s second argument for February 22, 2021.

The issue: Is Florida entitled to equitable use of the ACF River Basin waters and should its request for an injunction to force Georgia to allow an adequate flow of freshwater be sustained?

• Trump v. Sierra Club was initially scheduled for oral arguments on February 22, 2021. On February 3, 2021, the court removed this case from its February argument calendar, granting the U.S. government’s request to do so, pending further briefings on policy changes enacted by the Biden administration.

February 23

• Barr v. Dai (Consolidated with Barr v. Alcaraz-Enriquez) concerns the Immigration and Nationality Act (INA). Specifically, the credibility of an immigrant’s testimony before an immigration judge, the Board of Immigration Appeals, and U.S. Circuit Courts of Appeal. 

The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. It was consolidated with Barr v. Alcaraz-Enriquez. Both cases involve immigrants—Ming Dai, a native and citizen of China, and Cesar Alcaraz-Enriquez, a native and citizen of Mexico—who appealed to withhold their removal proceedings, i.e. deportation. Immigration judges ruled against withholding removal for both men. In each case, the Board of Immigration Appeals (BIA) upheld the immigration judges’ decisions. Dai and Alcaraz-Enriquez appealed to the 9th Circuit. In Barr v. Dai, the 9th Circuit overturned the BIA and the immigration judge’s ruling, holding Dai was entitled to withholding of removal proceedings. In Barr v. Alcaraz-Enriquez, the 9th Circuit granted the appeal in part and remanded the case to the BIA to reconsider Alcaraz-Enriquez’s withholding of removal claim. The U.S. government appealed to the U.S. Supreme Court.

The issues: “1. Whether a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination.

2. “Whether the court of appeals violated the remand rule as set forth in INS v. Ventura, 537 U.S. 12 (2002) (per curiam), when it determined in the first instance that respondent was eligible for asylum and entitled to withholding of removal.”

February 24

• Lange v. California concerns the Fourth Amendment to the U.S. Constitution and police entry into a private residence without a warrant. The case originated from the California First District Court of Appeal.

In Sonoma, California, Arthur Lange was driving home. California highway patrol officer Aaron Weikert pursued Lange to conduct a traffic stop and followed him to his home. Once Lange pulled into his driveway, Weikert activated his overhead lights. Lange alleged he did not see Weikert and closed his garage door behind him. Weikert entered the garage, stated he smelled alcohol on Lange’s breath and charged Lange with a misdemeanor offense–driving under the influence. 

At trial, Lange claimed that Weikert’s entry into Lange’s home violated the Fourth Amendment since Weikert did not have a warrant to enter Lange’s home and moved to suppress a video recording of the incident. The trial court concluded that the officer had probable cause, denied the motion to suppress, and issued a conviction for Lange. Later, a civil court ruled that Lange’s arrest was unlawful and an appellate court ruled that the arrest was lawful. On appeal to the California First District Court of Appeal, the court affirmed the conviction. 

The issue: “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.”

Opinions

SCOTUS ruled on three cases since our January 18 issue. The court has issued rulings in 15 cases so far this term. 

Click the links below to read more about the specific cases SCOTUS ruled on since January 18:

February 3

• Salinas v. United States Railroad Retirement Board was argued before the court on November 2, 2020.

The case: In 2006, Manfredo Salinas filed an application for disability annuity with the U.S. Railroad Retirement Board’s Disability Benefits Division. The application was denied. Salinas appealed to the Board to reconsider and his appeal was denied. In 2013, Salinas filed a new application for disability annuity. The Board granted the annuity. Salinas appealed the annuity’s start date and amount and requested that his earlier applications be reviewed. The Board denied the request. On appeal, the 5th Circuit dismissed Salinas’ petition for review. 

A decision to allow courts to review agency decisions not to reopen cases would expand the definition of final agency actions open to judicial review.

The issue: Whether, under the Railroad Unemployment Insurance and Railroad Retirement Acts, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a final decision subject to judicial review.

The outcome: In a 5-4 opinion, the court reversed the 5th Circuit’s ruling and remanded the case, holding that the Board’s refusal to reopen the prior benefits determination is subject to judicial review. 

Justice Sonia Sotomayor delivered the majority opinion of the court. Justice Clarence Thomas filed a dissenting opinion, joined by Justices Alito, Gorsuch, and Barrett.

• Republic of Hungary v. Simon concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). The court heard arguments on December 7, 2020.

In the judicial context, international comity means U.S. courts defer to another nation’s laws when legal action is brought pursuant to those laws. 

FSIA’s expropriation exception (28 U.S.C. § 1605(a)(3)) allows lawsuits against a foreign state involving “property taken in violation of international law.”

The case: The case arises out of opposing rulings in the 7th Circuit and the D.C. Circuit. Jewish survivors of the Hungarian Holocaust sued the Hungarian government and Magyar Államvasutak Zrt., Hungary’s state-owned railway company. The survivors sought damages for property the Hungarian government confiscated during World War II. The 7th Circuit ruled that under the doctrine of international comity, the survivors should first file suit in Hungarian courts. The D.C. Circuit held the opposite view.

The issue: “May the district court abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, where former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II, and where the plaintiffs made no attempt to exhaust local Hungarian remedies?”

The outcome: In a per curiam opinion, the Supreme Court vacated the D.C. Circuit’s ruling and remanded the case for further proceedings consistent with its ruling in Federal Republic of Germany v. Philipp. A per curiam opinion is issued and published collectively by the court and authorship of the decision is not indicated.

• Federal Republic of Germany v. Philipp also concerns international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA) and was also argued on December 7, 2020. 

The case: Jewish art dealers sold a collection of medieval art to Germany in the 1930s. The heirs of the art dealers claimed the sale was invalid. They filed a lawsuit in the District of Columbia, invoking the expropriation exception of the FSIA. Germany and the SPK argued (1) that the expropriation exception did not apply and (2) that international comity did not allow the claimants to sue in D.C. The D.C. Circuit held the art sale violated international law within the meaning of the expropriation exception. It also held courts could not abstain from presiding over such claims based on international comity.

The issues: “1. Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property.

2. “Whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims”

The outcome: In a unanimous opinion, SCOTUS vacated the D.C. Circuit’s ruling and remanded the case for further proceedings. The court held that FSIA’s expropriation exception includes the domestic takings rule, meaning that a foreign sovereign taking its own nationals’ property is not unlawful under the international law of expropriation.

Chief Justice John Roberts delivered the opinion of the court. 

Grants

On February 3, 2021, SCOTUS granted review in one case for one hour of oral argument, to be scheduled during its 2020-2021 term:

• PennEast Pipeline Co. v. New Jersey concerns jurisdictional requirements of eminent domain under the Natural Gas Act (“NGA”). The case originated from the U.S. Court of Appeals for the 3rd Circuit.

The case: The Natural Gas Act (“NGA”) allows private gas companies to exercise eminent domain if certain jurisdictional requirements are met. Natural gas company PennEast Pipeline Company (“PennEast”) was scheduled to build a natural gas pipeline through part of New Jersey. PennEast obtained federal approval and sued for access to the properties under the NGA in federal district court. The State of New Jersey (“New Jersey”) sought to dismiss PennEast’s suits, arguing that the company did not satisfy the NGA’s jurisdictional requirements and that the state held immunity from the suit under the Eleventh Amendment to the U.S. Constitution. The U.S. District Court for the District of New Jersey allowed PennEast immediate access to the properties at issue. New Jersey appealed to the U.S. Court of Appeals for the 3rd Circuit, which held that New Jersey was immune and vacated the district court’s orders. 

The issue: “Whether the NGA delegates to FERC certificate holders the authority to exercise the federal government’s eminent domain power to condemn land in which a state claims an interest.”

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• February 19: SCOTUS will conference. A conference is a private meeting of the justices.
• February 22: 
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in one case.
• February 23: SCOTUS will hear arguments in two cases.
• February 24: SCOTUS will hear arguments in one case.
• February 26: SCOTUS will conference.

SCOTUS trivia

When was the first time an outgoing Chief Justice administered the oaths to an incoming Chief Justice?

1. 1969

2. 1986

3. 2005

4. 1946

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 January 1 to February 1. This edition also marks the first in Ballotpedia’s coverage of the Biden administration.

Highlights

• Vacancies: There have been 11 new judicial vacancies since the December 2020 report. There are 57 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, 60 of 890 active federal judicial positions are vacant.
• Nominations: There were no new nominations since the December 2020 report.
• Confirmations: There have been no new confirmations since the December 2020 report.
• Comparison to previous presidential administrations: Not including appointments to the U.S. Supreme Court, 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.

Vacancy count for February 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

Eleven judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, the president nominates a replacement to fill the vacancies. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

• Judge William Alsup assumed senior status on the U.S. District Court for the Northern District of California.
• Judge Janet Hall assumed senior status on the U.S. District Court for the District of Connecticut.
• Judge Robert Katzmann assumed senior status on the U.S. Court of Appeals for the 2nd Circuit.
• Judge Larry Burns assumed senior status on the U.S. District Court for the Southern District of California.
• Judge Theresa Springmann assumed senior status on the U.S. District Court for the Northern District of Indiana.
• Judge Dan Polster assumed senior status on the U.S. District Court for the Northern District of Ohio.
• Judge James Gwin assumed senior status on the U.S. District Court for the Northern District of Ohio.
• Judge Carlos Lucero assumed senior status on the U.S. Court of Appeals for the 10th Circuit.
• Judge Jeffrey White assumed senior status on the U.S. District Court for the Northern District of California.
• Judge Phyllis Hamilton assumed senior status on the U.S. District Court for the Northern District of California.
• Judge Roslynn Mauskopf retired from the U.S. District Court for the Eastern 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 February 1, 2021.

New nominations

As of February 1, 2021, President Joe Biden (D) had not announced any new nominations. The average number of judicial appointees per president through February 1 of the first year is 0.

For comparison with Biden’s six immediate predecessors:

• President Ronald Reagan (R) made the most appointments through his first year with 41. President Barack Obama (D) made the fewest with 13.
• President Donald Trump (R) made the most appointments through four years with 234. President Ronald Reagan made the fewest through four years with 166.
• President Donald Trump made no Article III nominations by February 1 of his first year in office.

According to the Washington Post, the Biden administration will not review potential nominees in advance through the American Bar Association (ABA). Rather, the candidates’ ratings will come after the formal nomination. 

Since 1953, Presidents George W. Bush and Donald Trump are the only presidents who are known to not consult the ABA before submitting judicial nominees to the Senate.

New confirmations

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

As of February 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, check out our list of individuals the president has nominated.

Justice on center stage

This edition of Bold Justice marks the conclusion of our closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Amy Coney Barrett. 

Barrett has been an associate justice since October 26, 2020. President Donald Trump (R) nominated Barrett on September 29, 2020, to succeed Ruth Bader Ginsburg. The U.S. Senate voted to confirm Barrett 52-48 on October 26, 2020.

Before joining the U.S. Supreme Court, Barrett was a judge with the U.S. Court of Appeals for the 7th Circuit (2017-2020). Before that, she was a law professor with Notre Dame Law School, and a private practice attorney in Washington, D.C. (1999-2001). Click here to learn more about Barrett’s professional career.

Barrett was born in 1972 in New Orleans, Louisiana. She earned her bachelor’s degree, magna cum laude, in English literature from Rhodes College in 1994 and her J.D., summa cum laude, from Notre Dame Law School in 1997.

Keep an eye on the horizon for a new special segment in future editions of Bold Justice!

We #SCOTUS, so you don’t have to

The Supreme Court will hear two hours of oral arguments during the week of January 18 via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19.

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

January 19

• FCC v. Prometheus Radio Project, a case consolidated with National Association of Broadcasters v. Prometheus Radio Project, concerns changes the Federal Communications Commission (FCC) made to media ownership rules and whether the FCC adequately considered how the changes would affect women- and minority-owned media.

The consolidated cases originated in the U.S. Court of Appeals for the 3rd Circuit. The FCC issued modifications and orders following a 2016 review of broadcast media ownership rules. A group of petitioners challenged several of the rule changes with the 3rd Circuit. 

The 3rd Circuit issued several rulings:

• The petitioners had standing to challenge the changes.
• The FCC’s retention of the top-four component of local television ownership rules and the Incubator Order’s definition of comparable markets were not arbitrary or capricious.
• The FCC was not unreasonable in delaying action related to an industry procurement rule proposal. 
• The FCC had not sufficiently considered the how the changes would affect women- and minority-owned media. 

As a result, the court vacated and remanded the FCC’s orders and its definition of “eligible entities,” and denied the petitioners’ request to appoint a special master to ensure the FCC complied with the court’s rulings in a timely manner.

• The issue: “Whether the court of appeals erred in vacating as arbitrary and capricious the FCC orders under review, which, among other things, relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.”
  
• BP P.L.C. v. Mayor and City Council of Baltimore concerns the authority of an appeals court to review issues in removal orders.

The case originated from the U.S. Court of Appeals for the 4th Circuit. The Mayor and City Council of Baltimore, Maryland (“Baltimore”) sued 26 multinational oil and gas companies in state court, alleging the companies contributed to and were partially responsible for climate change and that the companies’ actions injured Baltimore. 

Two of the companies filed to move the case to federal court, claiming federal law governed the issues raised in the suit. Baltimore filed a motion with the U.S. District Court for the District of Maryland to move, or remand, the case back to state court. The district court granted Baltimore’s request and denied the companies’ removal request. The companies appealed to the 4th Circuit. The court affirmed the district court’s grant of Baltimore’s remand request. 

• The issue: “Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal officer removal statute, 28 U.S.C. 1442, or the civil rights removal statute, 28 U.S.C. 1443.”

Opinions

SCOTUS ruled on one case since our January 11 issue. The court has issued rulings in 11 cases so far this term. 31 cases are still under deliberation. 

Click the links below to read more about the specific cases SCOTUS ruled on since January 11:

• January 14
  • City of Chicago, Illinois v. Fulton was argued before the court on October 13, 2020.

The case: The City of Chicago, Illinois, (“Chicago”) towed and impounded Robbin Fulton’s vehicle. Fulton filed for Chapter 13 bankruptcy in federal bankruptcy court. Fulton requested that Chicago return her vehicle. Chicago declined the request. Fulton asked the court to sanction Chicago for not returning the car. Chicago asserted it would retain possession of the vehicle, citing an exemption to the federal bankruptcy code’s automatic stay provision. The automatic stay provision requires the immediate return of property once a bankruptcy petition is filed.

The bankruptcy court ruled that Chicago was required to return the vehicle, imposed sanctions, and sustained Fulton’s objection to Chicago’s assertion of its status as a secured creditor. Chicago returned the vehicle and appealed to the 7th Circuit. The court affirmed the bankruptcy court’s ruling. 

The issue: “Whether an entity that is passively retaining possession of property in which a bankruptcy estate has an interest has an affirmative obligation under the Bankruptcy Code’s automatic stay, 11 U.S.C § 362, to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition.”

The outcome: In a unanimous 8-0 opinion, the court vacated the U.S. Court of Appeals for the 7th Circuit’s ruling and remanded the case, holding that retaining property after a bankruptcy petition is filed does not violate the Bankruptcy Code. 

Justice Samuel Alito delivered the majority opinion of the court. Justice Sonia Sotomayor filed a concurring opinion. Justice Amy Coney Barrett took no part in the consideration or decision of the case.

Grants

On January 8, 2021, SCOTUS granted review in 14 cases for a total of 12 hours of oral argument, to be scheduled during its 2020-2021 term. 

SCOTUS has agreed to hear 60 cases during its 2020-2021 term. Twelve of those were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term. 

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

Click the links below to read more about the 14 cases SCOTUS recently added to its merits docket. The cases are listed by the lower courts from which they originated:

U.S. Court of Appeals for the 3rd Circuit

• Sanchez v. Wolf
• Mahanoy Area School District v. B.L.

U.S. Court of Appeals for the 4th Circuit

• United States v. Gary

U.S. Court of Appeals for the 5th Circuit

• City of San Antonio, Texas v. Hotels.com, L.P. 

U.S. Court of Appeals for the 9th Circuit

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

U.S. Court of Appeals for the 10th Circuit

• HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association

 U.S. Court of Appeals for the 11th Circuit

• Greer v. United States
• Terry v. United States

U.S. Court of Appeals for the District of Columbia Circuit

• Mnuchin v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation)
• Guam v. United States

U.S. Court of Appeals for the Federal Circuit

• Minerva Surgical Inc. v. Hologic Inc.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• January 19: 
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in three cases.
• January 22: SCOTUS will conference. A conference is a private meeting of the justices.
• January 25: SCOTUS will release orders. 

Federal court action

Confirmations

The Senate confirmed no new nominees since our January 11 issue.

Overall, the Senate has confirmed 234 of President Trump’s judicial nominees—174 district court judges, 54 appeals court judges, three Court of International Trade judges, and three Supreme Court justices—since January 2017.

Nominations

President Trump announced no new nominees since our January 11 edition.

The president has announced 274 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

Vacancies

The federal judiciary currently has 49 vacancies. As of publication, there were six pending nominations.

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

Committee action

The Senate Judiciary Committee reported no new nominees out of committee since our January 11 edition. 

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals nominated by the president.

Justice on center stage

In the next few Bold Justice editions, we’re rounding out our spotlight on U.S. Supreme Court justices. Today, we’re learning about Associate Justice Brett Kavanaugh. 

Kavanaugh has been an associate justice since October 6, 2018. President Donald Trump (R) nominated Kavanaugh on July 9, 2018, to succeed Anthony Kennedy. The U.S. Senate voted to confirm Kavanaugh 50-48 on October 6, 2018.

Before joining the U.S. Supreme Court, Kavanaugh was a judge with the U.S. Court of Appeals for the District of Columbia (2006-2018). Before that, he was an assistant and staff secretary deputy to President George W. Bush (R) (2003-2006), an associate counsel for the Executive Branch (2001-2003), an associate counsel with the Office of Independent Counsel (1998), and he served as general counsel for the Judiciary Branch (1994-1997). Click here to learn more about Kavanaugh’s professional career.

Kavanaugh was born in Washington, D.C. He attended Georgetown Preparatory School. He earned a B.A. from Yale College in 1987, and a J.D. from Harvard Law School in 1990.

In the 2019-2020 term, Kavanaugh wrote the following opinions:

• Barr v. American Association of Political Consultants Inc.
• USAID v. Alliance for Open Society International
• Thole v. U.S. Bank
• Nasrallah v. Barr
• Barton v. Barr
• McKinney v. Arizona

Looking ahead

We’ll be back on February 8 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

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

Welcome to the January 11 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

New year, new court business: SCOTUS ushers in its 2021 sittings to hear arguments and Congress has begun its 117th session. With all of these updates, Ballotpedia’s got you covered. Click here to subscribe to Ballotpedia’s Daily and Weekly Transition Trackers.

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

We #SCOTUS, so you don’t have to

The Supreme Court will hear three hours of arguments the week of January 11 via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 48 cases during its 2020-2021 term. Twelve of those were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

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

Click the links below to read more about the specific cases before SCOTUS during its January sitting.

January 11

• Albence v. Guzman Chavez concerns the Immigration and Nationality Act of 1952 and the federal government’s statutory authority to detain immigrants who are seeking to overturn a deportation order issued after a reinstated removal order. 
• A reinstated removal order is when an immigrant enters the United States without lawful permission, is deported, and then re-enters the United States without lawful permission, the original deportation order, known as a removal order, is reinstated.
• The case originated in a dispute over whether the respondents, a group of immigrants detained by the U.S. government pending deportation proceedings, could seek release in bond hearings before immigration judges. The government argued they could not seek release, because 8 U.S.C. 1231 subjected the immigrants to mandatory detention. The immigrants argued that 8 U.S.C. 1226 allowed them to seek release via bond hearings. The U.S. District Court held the respondents were detained under 8 U.S.C. 1226 and ordered the government to provide bond hearings. On appeal, the U.S. Court of Appeals for the 4th Circuit upheld the district court’s ruling. Matthew Albence, the acting director of U.S. Immigration and Customs Enforcement (ICE), petitioned the Supreme Court for review.
• The issue: “Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. 1231, or instead by 8 U.S.C. 1226.”

January 12

• Uzuegbunam v. Preczewski concerns mootness of nominal damages claims. 
• Nominal damages claims are when a judge or jury rules in favor of one party to a lawsuit but finds that the damages incurred were of no real harm and awards a small, or nominal, amount of money.
• Mootness is when further legal proceedings will have no effect on the matter at issue.
• A student at Georgia Gwinnett College, Chike Uzuegbunam, was distributing religious literature on campus. Uzuegbunam was stopped by campus police and informed he was subject to disciplinary action if he continued handing out information under the school’s code of conduct. Uzuegbunam and fellow student James Bradford sued multiple school officials in U.S. district court, challenging the school’s policies constitutionality and seeking nominal damages. While the case was pending, the school revised its policies and Uzuegbunam graduated. Counsel for the school officials moved for dismissal, claiming the appellants’ arguments were now moot because of the policy changes. The district court dismissed the case. On appeal, the U.S. Court of Appeals for the 11th Circuit affirmed the district court’s ruling. Uzuegbunam and Bradford petitioned the Supreme Court for review, citing a circuit split, or differing rulings from different federal circuit courts, on the subject of mootness related to nominal damages claims.
• The issue: Whether a government’s post-filing change of an unconstitutional policy moots nominal damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.

January 13

• AMG Capital Management, LLC v. Federal Trade Commission concerns the Federal Trade Commission Act and whether it authorizes the Federal Trade Commission to demand restitution.
• In 2012, the Federal Trade Commission (“FTC”) sued Scott Tucker and his credit monitoring companies in the U.S. District Court for the District of Nevada for violating consumer-protection statutes in the Federal Trade Commission Act. The court granted the FTC’s motion for summary judgment and ordered the defendant to pay restitution. The U.S. Court of Appeals for the 9th Circuit affirmed the District of Nevada’s ruling. AMG Capital Management, LLC petitioned the Supreme Court for review.
• The issue: Whether §13(b) of the Federal Trade Commission Act, by authorizing the FTC to seek preliminary and permanent injunctions where applicable, also authorizes the FTC to demand relief in the form of money including restitution, and if it does, what the scope of the limits or requirements for the equitable monetary relief would be.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• January 11: 
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in one case.
• January 12: SCOTUS will hear arguments in one case.
• January 13: SCOTUS will hear arguments in one case.
• January 15: SCOTUS will conference. A conference is a private meeting of the justices.
• January 19: 
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in three cases.

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 December 1 to December 31.

Highlights

• Vacancies: There have been no new judicial vacancies since the November 2020 report. As of December 31, 46 out of 870 (5.3%) active Article III judicial positions on the courts covered in this report were vacant.
  
  Including the United States Court of Federal Claims and the United States territorial courts, 49 of 890 active federal judicial positions are vacant.
  
• Nominations: There were no new nominations since the November 2020 report.
  
• Confirmations: There have been seven new confirmations since the November 2020 report.

Vacancy count for December 31, 2020

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

No judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. A presidential nomination is required to fill an Article III vacancy. Nominations are subject to the advice and consent of the U.S. Senate.

The chart below shows the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017, to December 31, 2020.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of December 31.

New nominations

President Trump has not announced any new nominations since the November 2020 report. 

The president has announced 274 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between December 1 and December 31, 2020, the Senate confirmed seven of the president’s nominees to Article III courts.

• Taylor McNeel, confirmed to the United States District Court for the Southern District of Mississippi.
• J. Philip Calabrese, confirmed to the United States District Court for the Northern District of Ohio.
• Thomas Kirsch, confirmed to the United States Court of Appeals for the 7th Circuit.
• Katherine Crytzer, confirmed to the United States District Court for the Eastern District of Tennessee.
• Joseph Dawson, confirmed to the United States District Court for the District of South Carolina.
• Charles Atchley, confirmed to the United States District Court for the Eastern District of Tennessee.
• Fernando Aenlle-Rocha, confirmed to the United States District Court for the Central District of California.

Between January 2017 and December 31, 2020, the Senate confirmed 234 of President Trump’s judicial nominees—174 district court judges, 54 appeals court judges, three Court of International Trade judges, and three Supreme Court justices.

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, check out our list of individuals the president has nominated.

Justice on center stage

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Neil Gorsuch. 

Gorsuch has been an associate justice since April 10, 2017. President Donald Trump (R) nominated Gorsuch on January 31, 2017, to succeed Antonin Scalia. The U.S. Senate voted to confirm Gorsuch 54-45 on April 7, 2017.


Before joining the U.S. Supreme Court, Gorsuch was a judge with the U.S. Court of Appeals for the 10th Circuit (2006-2017). Before that, he was a principal deputy, associate attorney general with the U.S. Department of Justice (2005-2006), and a partner and associate with  a private practice, Kellogg, Huber, Hansen, Todd, Evans, and Figel (1995-2005). Click here to learn more about Gorsuch’s professional career.

Gorsuch was born on August 29, 1967, in Denver, Colorado. He earned his B.A. from Columbia University in 1988, his J.D. from Harvard Law School in 1991, and his D.Phil. from the University of Oxford in 2004.

In the 2019-2020 term, Gorsuch wrote the following opinions:

• McGirt v. Oklahoma
• Rodriguez v. Federal Deposit Insurance Corporation
• Comcast Corp. v. National Association of African American-Owned Media
• Ramos v. Louisiana
• Romag Fasteners v. Fossil
• Opati v. Republic of Sudan
• Bostock v. Clayton County, Georgia (Consolidated with Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC) 

Looking ahead

We’ll be back on January 18 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

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

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court heard five hours of arguments the week of November 30 and will hear five hours of arguments this week via teleconference with live audio. The court is conducting proceedings this way in accordance with public health guidance in response to COVID-19.

SCOTUS has agreed to hear 45 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

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

Click the links below to read more about the specific cases before SCOTUS during its December sitting.

November 30

• Van Buren v. United States concerns the Computer Fraud and Abuse Act (CFAA).
  
  Nathan Van Buren was convicted in the U.S. District Court for the Northern District of Georgia of felony computer fraud in violation of the Computer Fraud and Abuse Act (CFAA). Van Buren, a police sergeant in Cumming, Georgia, had accessed the Georgia Crime Information Center database to obtain information for a local man named Andrew Albo in exchange for money. Van Buren moved for acquittal, arguing he had not exceeded authorized access according to Section 1030(a)(2) of the CFAA. The district court rejected the motion. On appeal, the U.S. Court of Appeals for the 11th Circuit affirmed Van Buren’s conviction.
  
  The issue: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”

• Trump v. New York concerns congressional apportionment following the 2020 U.S. Census. The Trump administration is asking the U.S. Supreme Court to consider if the president could order the commerce secretary to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.

President Donald Trump (R) issued a memorandum to Commerce Secretary Wilbur Ross regarding congressional apportionment following the 2020 U.S. Census. The memorandum said it was the policy of the United States to exclude individuals living unlawfully in the U.S. from the census apportionment base. A coalition of state and local governments and non-governmental organizations (NGOs) sued the government in the U.S. District for the Southern District of New York, arguing the policy violated the U.S. Constitution and laws governing the census and apportionment.

The administration argued (1) the court did not have jurisdiction to review the claims and (2) the policy was legal. The district court ruled in favor of the coalition, holding the president exceeded his authority in issuing the memorandum. The administration appealed to the U.S. Supreme Court.

The issues:

(1) Whether the coalition of state and local governments and NGOs have the legal right, also known as standing, to challenge the memorandum;

(2) whether the president has the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base.

December 1

• Nestlé USA v. Doe I, consolidated with Cargill v. Doe I, concerns the Alien Tort Statute (“ATS”). Under 28 U.S. Code § 1350, the Alien Tort Statute says “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” A tort is a wrongful act other than a breach of contract leading to civil legal liability. According to SCOTUSblog, “The Alien Tort Statute is an 18th-century law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international human rights laws.”

A group of Malian citizens (“claimants”) filed a lawsuit under the ATS against corporations including Nestlé USA and Cargill, Inc. The claimants alleged they were subjected to child slavery on cocoa farms in Côte d’Ivoire. The U.S. District Court for the Central District of California dismissed the case, holding that corporations could not be held liable under the ATS. On appeal, the 9th Circuit vacated the lower court’s ruling. 

The issues: 

1. Whether a domestic corporation, alleged to be aiding and abetting violations of international human rights law outside of the United States, can be sued under the Alien Tort Statute.
2. Whether the courts have the authority to impose liabilities on a domestic corporation under the ATS.

• CIC Services v. Internal Revenue Service concerns the Anti-Injunction Act, a federal law that bars lawsuits to stop the assessment or collection of taxes. Click here to learn more about the Anti-Injunction Act.

In 2004, Congress authorized the Internal Revenue Service (IRS) to identify and gather details about potential tax shelters. The IRS set up requirements regarding transactions that are required to be reported to the IRS. In 2016, the IRS published a notice identifying certain “micro-captive transactions” as “transactions of interest,” under the umbrella of reportable transactions.

In 2017, risk management consulting firm CIC Services challenged the updated requirements in district court as being beyond the scope of the IRS’ authority and sought to enjoin, or halt, the notice’s enforcement. The IRS moved to dismiss the complaint, citing a lack of subject matter jurisdiction. The court granted the defendant’s motion. On appeal, the 6th Circuit affirmed the district court’s dismissal. 

The issue: “Whether the Anti-Injunction Act’s bar on lawsuits for the purpose of restraining the assessment or collection of taxes also bars challenges to unlawful regulatory mandates issued by administrative agencies that are not taxes.”

December 2

• Edwards v. Vannoy concerns the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020).
  
  A non-unanimous jury found Thedrick Edwards guilty of five counts of armed robbery, one count of attempted armed robbery, two counts of aggravated kidnapping, and one count of aggravated rape. Edwards was sentenced to 30 years imprisonment on each armed robbery count and to life imprisonment on the aggravated kidnapping and aggravated rape counts. Edwards appealed his conviction because it was decided by a non-unanimous jury verdict, which was since deemed unconstitutional by the Supreme Court in Ramos v. Louisiana (2020), and he appealed his sentence. Edwards’ appeal was denied in state and federal court. He then filed a petition for habeas corpus with the U.S. District Court for the Middle District of Louisiana. The district court denied Edwards’ claim. Edwards appealed to the U.S. Court of Appeals for the 5th Circuit, which refused to issue a certificate of appealability. A certificate of appealability is required to appeal a complaint arising from a state court during a habeas corpus proceeding.

The issue: Whether the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020) applies retroactively to cases on federal collateral review. In Ramos v. Louisiana, the U.S. Supreme Court held that the 6th Amendment’s right to a unanimous jury verdict to support a conviction applies in both federal and state courts.

• Department of Justice v. House Committee on the Judiciary was originally scheduled for one hour of oral argument on December 2. On November 20, the court granted the House Judiciary Committee’s motion to remove the case from its December argument calendar. The House Judiciary Committee had asked the court to reschedule arguments following the Nov. 3, 2020, presidential and congressional elections. The Justice Department said that it did not object to the motion.

The case concerns the Federal Rules of Criminal Procedure and whether a U.S. Senate-conducted impeachment trial counts as a judicial proceeding for the purposes of disclosing secret grand jury information. 

The following cases will be heard the week of December 7:

December 7

• Republic of Hungary v. Simon concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). The expropriation exception (28 U.S.C. § 1605(a)(3)) allows lawsuits against a foreign state involving “property taken in violation of international law.” International comity means that U.S. courts defer to another nation’s laws when legal action is brought under those laws.
  
  The case arises out of conflicting rulings in the 7th Circuit and the D.C. Circuit. Jewish survivors of the Hungarian Holocaust sued the Hungarian government and Magyar Államvasutak Zrt., Hungary’s state-owned railway company. The survivors sought damages for property the Hungarian government confiscated during World War II. The 7th Circuit ruled that under the doctrine of international comity, the survivors should first file suit in Hungarian courts. The D.C. Circuit held the opposite view.
  
  The issue: Was it proper for the district court to abstain from exercising jurisdiction under the FSIA for reasons of international comity because the respondents did not try to obtain legal remedies in Hungary before filing the lawsuits in the United States?

• Federal Republic of Germany v. Philipp concerns the doctrine of international comity and the expropriation exception of the Foreign Sovereign Immunities Act (FSIA).
  
  Jewish art dealers sold a collection of medieval art to Germany in the 1930s. The art dealers’ heirs claimed the sale was invalid and filed a lawsuit in the District of Columbia, invoking the expropriation exception of the FSIA. Germany and the SPK argued (1) that the expropriation exception did not apply and (2) that international comity did not allow the claimants to sue in D.C. The D.C. Circuit held the art sale violated international law within the meaning of the expropriation exception. It also held courts could not abstain from presiding over such claims based on international comity.

The issues:

(1) Does the FSIA’s expropriation exception require foreign states to defend themselves in U.S. courts when charged with illegally taking property from their own citizens on their own territory?

(2) If the expropriation exception permits these claims, can a U.S. court decline to exercise jurisdiction under the international comity doctrine? 

December 8

• Facebook v. Duguid concerns the definition of an automated telephone dialing system in the Telephone Consumer Protection Act (TCPA).
  
  Facebook allows users to receive text message alerts when their accounts are accessed from unknown devices or browsers. Noah Duguid did not have a Facebook account and never consented to receive those alerts. He sued Facebook after receiving multiple text messages and attempting to opt out of receiving the alerts. He claimed Facebook violated the TCPA’s ban on calling or sending text messages to cell phones using an automated telephone dialing system (ATDS). The U.S. District Court for the Northern District of California dismissed the lawsuit. On appeal, the 9th Circuit reversed the district court’s ruling.
  
  The issue: “Whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.'”

• Henry Schein Inc. v. Archer and White Sales Inc. concerns arbitration agreements.
  
  Dental equipment distributor Archer & White Sales, Inc. entered into a distribution agreement with dental equipment manufacturer Pelton and Crane. The contract provided for arbitration of any dispute arising under or related to the agreement, except for actions seeking injunctive relief, among other potential actions. Henry Schein, Inc., a distributor and dental equipment manufacturer, was Pelton and Crane’s successor-in-interest, meaning that it would succeed Pelton and Crane as the interested party related to the property covered in the agreement. Archer sued Schein, alleging that the company violated the Sherman Antitrust Act and the Texas Free Enterprise and Antitrust Act. Schein moved to compel arbitration proceedings and to halt Archer’s suit and a magistrate judge granted the request. The Eastern District of Texas reconsidered the case and reversed the order, resuming proceedings in court. On appeal, the 5th Circuit affirmed the district court’s ruling. On appeal to the Supreme Court, SCOTUS vacated the 5th Circuit’s judgment and remanded the case back to the 5th Circuit for reconsideration. The 5th Circuit affirmed the district court’s ruling once again. Schein appealed to the Supreme Court for a second time.

The issue: “Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.”

December 9

• Collins v. Mnuchin, consolidated with Mnuchin v. Collins, concerns the extent of the president’s appointment and removal powers and control of independent federal agencies.
  
  The Federal Housing Finance Agency (FHFA) worked with the U.S. Department of the Treasury to change how private shareholders of Fannie Mae and Freddie Mac are compensated when the companies make a profit. The shareholders sued, arguing that the change was beyond the powers of the FHFA and the Treasury and that the structure of the FHFA was unconstitutional.
  
  The issues:

(1) Whether FHFA’s structure violates the separation of powers.

(2) Whether the courts must set aside a final agency action that FHFA took when it was unconstitutionally structured and strike down the statutory provisions that make FHFA independent.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• December 7: 
  • SCOTUS will release orders. 
  • SCOTUS will hear arguments in two cases.
• December 8: SCOTUS will hear arguments in two cases.
• December 9: SCOTUS will hear arguments in one case.
• December 11: SCOTUS will conference. A conference is a private meeting of the justices.
• December 14: SCOTUS will release orders.

SCOTUS trivia

Which of the following did not serve as a Chief Justice of the United States Supreme Court?

1. John Jay

2. Thurgood Marshall

3. William Rehnquist

4. Salmon Portland Chase

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 November 2 to December 1.

Highlights

• Vacancies: There has been one new judicial vacancy since the November 2020 report. As of December 1, 53 out of 870 (6.1%) active Article III judicial positions on the courts covered in this report were vacant.
  
  Including the United States Court of Federal Claims and the United States territorial courts, 60 of 890 active federal judicial positions are vacant.
  
• Nominations: There has been one new nomination since the November 2020 report.
  
• Confirmations: There have been seven new confirmations since the November 2020 report.

Vacancy count for December 1, 2020

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

One judge has left active status, creating an Article III life-term judicial vacancy, since the previous vacancy count. A presidential nomination is required to fill an Article III vacancy. Nominations are subject to the advice and consent of the U.S. Senate.

• Judge Joel Flaum assumed senior status with the U.S. Court of Appeals for the 7th Circuit.

The chart below shows the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017, to December 1, 2020.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of December 1.

New nominations

President Trump has announced one new nomination since the October 2020 report.

• Raúl Arias-Marxuach, to the United States Court of Appeals for the 1st Circuit.

The president has announced 275 Article III judicial nominations since taking office on January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between November 2 and December 1, 2020, the Senate confirmed seven of the president’s nominees to Article III courts.

• James Knepp, confirmed to the United States District Court for the Northern District of Ohio.
• Aileen Cannon, confirmed to the United States District Court for the Southern District of Florida.
• Benjamin Beaton, confirmed to the United States District Court for the Western District of Kentucky.
• Toby Crouse, confirmed to the United States District Court for the District of Kansas.
• Kristi Johnson, confirmed to the United States District Court for the Southern District of Mississippi.
• Kathryn Kimball Mizelle, confirmed to the United States District Court for the Middle District of Florida.
• Stephen Vaden, confirmed to the United States Court of International Trade.

Between January 2017 and December 1, 2020, the Senate confirmed 227 of President Trump’s judicial nominees—168 district court judges, 53 appeals court judges, three Court of International Trade judges, and three Supreme Court justices.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals the president has nominated.

Justice on center stage

In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Elena Kagan. 

Kagan has been an associate justice since August 7, 2010. President Barack Obama (D) nominated Kagan on May 10, 2010, to succeed John Paul Stevens. The U.S. Senate voted to confirm Kagan 63-37 on August 5, 2010.

Before joining the U.S. Supreme Court, Kagan was the solicitor general of the United States (2009-2010). Before that, she was a dean with Harvard Law School and a Huston Professor of Law with Harvard University. Click here to learn more about Kagan’s professional career.

Kagan was born and raised in New York, New York. She earned her A.B. from Princeton University in 1981 and a master’s in philosophy from Worcester College at the University of Oxford in 1983. Kagan received her J.D. from Harvard Law School in 1986.

In the 2019-2020 term, Kagan wrote the following opinions:

• Allen v. Cooper
• Kahler v. Kansas
• Kelly v. United States
• Banister v. Davis
• Lomax v. Ortiz-Marquez
• Chiafalo v. Washington

Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting! Welcome to the November 9 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Election Day was almost one week ago! Ballotpedia’s Election Help Desk is designed to help you sort through the layers of complexities with this year’s elections. Click here to subscribe to the Election Help Desk Newsletter. Otherwise, stay up to date on the latest news by following us on Twitter or subscribing to the Daily Brew. Arguments The Supreme Court will hear three hours of arguments this week via teleconference with live audio. The court made the decision to hold proceedings this way in accordance with public health guidance in response to COVID-19. SCOTUS has agreed to hear 41 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term. In its October 2019 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term. Click the links below to read more about the specific cases SCOTUS will hear this week: November 9 Niz-Chavez v. Barr concerns (1) the government’s ability to serve a notice to appear to a non-citizen and (2) the immigration stop-time rule, where a non-citizen’s accrual of continuous residence ends when that person is served with a notice to appear. Agusto Niz-Chavez, a native and citizen of Guatemala, came to the United States without legal permission in 2005. In 2013, he was served with a notice to appear for deportation proceedings. The notice to appear did not include the time and place of a hearing. A second notice later indicated the hearing would take place on June 25, 2013. Niz-Chavez applied for withholding of removal under the Immigration and Nationality Act and for relief under the United Nations Convention Against Torture. An immigration judge denied his motion. The U.S. Board of Immigration Appeals affirmed the immigration judge’s decision, and the U.S. Court of Appeals for the 6th Circuit denied a petition for review. Congress enacted the stop-time rule as part of the Illegal Immigration Reform and Immigrant Responsibility Act. The rule says a non-citizen’s accrual of continuous residence in the United States ends when the government serves the non-citizen with a notice to appear under 8 U.S.C. § 1229(a). The IIRIRA required the notice to appear to include the time and place of a hearing. The issue: Whether the government must provide the time and place of deportation hearings in a single notice to appear document to trigger the stop-time rule under 8 U.S.C. § 1229(a), or whether the government can provide the information in multiple documents to trigger the rule. Brownback v. King concerns the judgment bar of the Federal Tort Claims Act (FTCA). The FTCA judgment bar provision says: “The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” In 2014, FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen stopped James King, who violently resisted arrest. King was tried and acquitted of charges of assault with intent to do great bodily harm, aggravated assault of a police officer, and resisting arrest. He then sued the United States under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The U.S. District Court for the Western District of Michigan ruled that Brownback and Allen had not violated King’s constitutional rights under Bivens. The district court also decided against King’s FTCA claims. King appealed. On appeal, Brownback and Allen argued the FTCA judgment bar prevented King’s Bivens claims. The 6th U.S. Circuit Court of Appeals rejected their argument and reversed the district court’s ruling. The issue: Whether a final judgment against a claimant in a lawsuit brought under Section 1346(b)(1) of the FTCA prevents the claimant from bringing a claim under Bivens for the same injuries against the same government employees. November 10 California v. Texas concerns the Patient Protection and Affordable Care Act (ACA), also known as Obamacare. President Barack Obama (D) signed the ACA into law in 2010. Section 5000A of the ACA, known as the individual mandate, established requirements for individuals to have health coverage and instituted fines for those without coverage. In 2018, 20 states filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the individual mandate and claiming the ACA was unconstitutional. A district court judge ruled the law was invalid. On appeal, the U.S. Court of Appeals for the 5th Circuit ruled Section 5000A was unconstitutional and remanded the case. A group of states petitioned the U.S. Supreme Court for review, arguing (1) the respondents did not have the legal right to challenge the law and (2) the law was constitutional.  The issues: (1) Whether plaintiffs have the legal right to challenge the individual mandate. (2) Whether reducing the amount specified for fines in Section 5000A(c) to zero made the individual mandate provision unconstitutional. (3) If so, whether the individual mandate provision is severable from the rest of the ACA, i.e., whether the remainder of the ACA can remain in place if the individual mandate provision is unconstitutional. Upcoming SCOTUS dates Here are the court’s upcoming dates of interest: November 9:  SCOTUS will release orders.  SCOTUS will hear arguments in two cases. November 10: SCOTUS will hear arguments in one case. November 13: SCOTUS will conference. A conference is a private meeting of the justices. November 16: SCOTUS will release orders. November 20: SCOTUS will conference. November 23: SCOTUS will release orders. November 30: SCOTUS will hear arguments in two cases. Justice Clarence Thomas swore Justice Amy Coney Barrett into office on October 26, 2020. How many oaths of office are SCOTUS justices required to take? Nine Five Two One 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 October 2 to November 1. Highlights Vacancies: There have been two new judicial vacancies since the October 2020 report. As of November 1, 59 out of 870 (6.8%) active Article III judicial positions on the courts covered in this report were vacant. Including the United States Court of Federal Claims and the United States territorial courts, 66 of 890 active federal judicial positions are vacant.   Nominations: There have been two new nominations since the October 2020 report.   Confirmations: There have been two new confirmations since the October 2020 report. Vacancy count for November 1, 2020 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 Two judges have left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. A presidential nomination is required to fill an Article III vacancy. Nominations are subject to the advice and consent of the U.S. Senate. Judge Amy Coney Barrett left the U.S. Court of Appeals for the 7th Circuit after she was elevated to the Supreme Court of the United States. Judge Juan Torruella died on October 26, 2020, leaving an open seat on the U.S. Court of Appeals for the 1st Circuit. The chart below shows the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017 to November 1, 2020. U.S. District Court vacancies The following map displays U.S. District Court vacancies as of November 1. New nominations President Trump has announced two new nominations since the October 2020 report. Thomas Kirsch, to the United States Court of Appeals for the 7th Circuit. Joseph Barloon, to the United States Court of International Trade. The president has announced 273 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here. New confirmations Between October 2 and November 1, 2020, the Senate confirmed two of the president’s nominees to Article III courts. Amy Coney Barrett, confirmed to the Supreme Court of the United States. Michael Newman, confirmed to the United States District Court for the Southern District of Ohio. Between January 2017 and November 1, 2020, the Senate confirmed 220 of President Trump’s judicial nominees—162 district court judges, 53 appeals court judges, two Court of International Trade judges, and three Supreme Court justices. Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees. Or, if you prefer, we also maintain a list of individuals the president has nominated. In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Sonia Sotomayor. Sotomayor has been an associate justice since August 6, 2009. President Barack Obama (D) nominated Sotomayor on June 1, 2009, to succeed David Souter. The U.S. Senate voted to confirm Sotomayor 68-31 on August 6, 2009. Before joining the U.S. Supreme Court, Sotomayor was a judge on the U.S. Court of Appeals for the 2nd Circuit (1998-2009) and the U.S. District Court for the Southern District of New York (1992-1998). Before that, she was an attorney in private practice and an assistant district attorney in New York County. Click here to learn more about Sotomayor’s professional career. Sotomayor was born in the Bronx, New York, on June 25, 1954. Her parents were born in Puerto Rico. Sotomayor graduated as valedictorian from Cardinal Spellman High School, a private Catholic school in New York City, in 1972. She earned a B.A., summa cum laude, in history from Princeton University in 1976 and a J.D. from Yale Law School in 1979. At Yale, she co-chaired the Latin American and Native American Students Association and was published in the Yale Law Journal (where she also served as an editor). In the 2019-2020 term, Sotomayor wrote the following opinions: Peter v. NantKwest CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd. Maine Community Health Options v. United States Lucky Brand Dungarees v. Marcel Fashion Group Liu v. Securities and Exchange Commission We’ll be back December 7 with a new edition of Bold Justice. Contributions Sara Reynolds compiled and edited this newsletter.

Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting! Welcome to the November 2 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Election Day is tomorrow! Ballotpedia’s Election Help Desk was designed to help you sort through the layers of complexities with this year’s elections. Click here to subscribe to the Election Help Desk Newsletter. Otherwise, stay up to date on the latest news by following us on Twitter or subscribing to the Daily Brew. Arguments The Supreme Court will hear five hours of arguments this week via teleconference with live audio. The court made the decision to hold proceedings this way in accordance with public health guidance in response to COVID-19. SCOTUS has agreed to hear 41 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term. In its October 2019 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term. Click the links below to read more about the specific cases SCOTUS will hear this week: November 2 In U.S. Fish and Wildlife Service v. Sierra Club, the Sierra Club challenged an Environmental Protection Agency rule and a biological opinion from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, Services). A biological opinion is a document stating the Services’ opinion on whether a federal agency action is likely to harm listed species or critical habitat. During that litigation, the Sierra Club submitted a Freedom of Information Act (FOIA) request for draft documents from a consultation between the three agencies that took place between 2011 and 2014. The Services released some documents but withheld others under FOIA Exemption 5. FOIA requires a federal agency to disclose records upon request. The law grants nine exemptions. Exemption 5 allows an agency to withhold “inter-agency or intra-agency memoranda or letters that are protected by legal privileges.” The Sierra Club sued Services in the U.S. District Court for the Northern District of California, which ruled Services had to disclose some documents but could withhold others. On appeal, the U.S. 9th Circuit Court of Appeals affirmed in part and reversed in part the district court’s decision. The government petitioned the U.S. Supreme Court for review. The issue: Whether FOIA Exemption 5 protects draft documents from compelled disclosure if the documents were (1) created during a formal interagency consultation process under Section 7 of the Endangered Species Act and (2) later modified in the consultation process. In Salinas v. U.S. Railroad Retirement Board, Manfredo Salinas filed an application for disability annuity with the U.S. Railroad Retirement Board’s Disability Benefits Division in 2006. The application was denied. Salinas appealed to the Board to reconsider. The Board denied the request. In 2013, Salinas filed a new application for disability annuity. The Board granted the annuity. Salinas appealed the annuity’s start date and amount, and requested that his prior applications be reviewed. The Board denied the request. On appeal, the 5th Circuit dismissed Salinas’ petition, holding the court lacked jurisdiction to review the Board’s decision not to reopen Salinas’ earlier case. The issue: Whether, under Section 5(f) of the Railroad Unemployment Insurance Act and Section 8 of the Railroad Retirement Act, the Railroad Retirement Board’s denial of a request to reopen a prior benefits determination is a final decision subject to judicial review. November 3 Jones v. Mississippi concerns sentencing of juveniles—individuals under 18 years old—to life imprisonment without parole. When he was 15 years old, Brett Jones killed his grandfather. Jones 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 Lee County Circuit Court to hold a sentencing rehearing. The circuit court resentenced Jones to life in prison without parole. Jones appealed to the Mississippi Court of Appeals, which rejected his argument to reverse the sentence. The state supreme court then held oral arguments for the case before dismissing it. Four judges dissented, arguing Jones’ case should be remanded with instructions to sentence him to life in prison with the possibility of parole. Jones petitioned the U.S. Supreme Court for review. The issue: Whether the 8th Amendment requires a sentencing authority to find that a juvenile is “permanently incorrigible” before sentencing the juvenile to life without parole. A juvenile is considered incorrigible when he or she refuses to accept the authority and discipline of adults in a repeated, dangerous, and disruptive way. Borden v. United States concerns the “use of force” clause in the Armed Career Criminal Act (ACCA). Charles Borden, Jr. pleaded guilty to possessing a firearm as a felon. The U.S. District Court for the Eastern District of Tennessee, relying on the 6th Circuit Court’s decision in United States v. Verwiebe (2017), sentenced Borden to nine years and seven months of imprisonment under the ACCA. In Verwiebe, the 6th Circuit ruled that “reckless aggravated assault is a crime of violence” under the ACCA’s use-of-force clause. Borden objected to his sentence, arguing the district court’s application of Verwiebe to his case violated due process protections. On appeal, the 6th Circuit affirmed the district court’s ruling. Borden petitioned the U.S. Supreme Court for review. The issue: Does the “use of force” clause in the ACCA apply to crimes committed with a reckless intent? The ACCA’s “use of force” clause states: “The term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year … that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another.” November 4 In Fulton v. City of Philadelphia, Pennsylvania, Philadelphia’s Department of Human Services began an investigation into two of its foster care provider agents for potential violations of the city’s anti-discrimination laws. The investigation was based on an allegation that the agencies refused to work with same-sex couples seeking to become foster parents. One of the agencies was a religious nonprofit organization, Catholic Social Services (CSS). CSS confirmed that it would not certify same-sex couples as foster parents. The city stopped referring foster children to the agency. CSS sued the city in U.S. district court, citing violations of its rights under the First Amendment and under Pennsylvania’s Religious Freedom Protection Act. The district court denied the request. CSS appealed to the 3rd Circuit, seeking emergency injunctive relief pending appeal. The circuit court denied the request. Then, CSS filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari. The Court denied the request. On appeal, the 3rd Circuit affirmed the district court’s ruling. The issue: “Whether a Catholic social services agency that receives taxpayer funding can legally discriminate against same-sex couples to be foster parents.” Upcoming SCOTUS dates  Here are the upcoming dates of interest in October: November 2:  SCOTUS will release orders.  SCOTUS will hear arguments in two cases. November 3: SCOTUS will hear arguments in two cases. November 4: SCOTUS will hear arguments in one case. November 6: SCOTUS will conference. A conference is a private meeting of the justices. The Roberts Court started in September 2005 and is ongoing. Excluding Chief Justice Roberts, how many justices have served on the U.S. Supreme Court during the Roberts Court? 22 14 11 9 Choose an answer to find out! Confirmations The Senate has confirmed two new nominees since our October 12 issue. Amy Coney Barrett was confirmed to the U.S. Supreme Court. After she received commission, the court had: No vacancies. Six Republican-appointed judges and three Democrat-appointed judges. Michael Newman was confirmed to the U.S. District Court for the Southern District of Ohio. After he receives commission, the court will have: Five Republican-appointed judges and three Democrat-appointed judges. Since January 2017, the Senate has confirmed 220 of President Trump’s judicial nominees—162 district court judges, 53 appeals court judges, two Court of International Trade judges, and three Supreme Court justices. Amy Coney Barrett confirmation On October 26, the U.S. Senate voted 52-48 to confirm Amy Coney Barrett to a seat on the U.S. Supreme Court. The vote was mostly along party lines, with Sen. Susan Collins of Maine as the only Republican to vote with Democrats against Barrett’s confirmation. President Trump nominated Barrett on September 29 to succeed Associate Justice Ruth Bader Ginsburg, who died on September 18 at the age of 87. Barrett earned her bachelor’s degree, magna cum laude, in English literature from Rhodes College in 1994 and her J.D., summa cum laude, from Notre Dame Law School in 1997. She was awarded the law school’s Hoynes Prize, which is the law school’s highest honor. Barrett was executive editor of the Notre Dame Law Review. Barrett was a judge on the U.S. Court of Appeals for the 7th Circuit from 2017 to 2020. From 2002 to 2017, she was a professor of law at Notre Dame Law School. She previously worked in private practice and as a law clerk to U.S. Supreme Court Justice Antonin Scalia (1998-1999) and to Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit (1997-1998). Barrett has explained her judicial philosophy as originalist—interpreting the U.S. Constitution according to what the words meant to the individuals who wrote it—and textualist—interpreting a law based on the words on the page, not what Congress may have intended to do when the law was passed. Nominations President Trump has announced two new Article III nominees since our October 12 edition. Thomas Kirsch II of Indiana to the U.S. Court of Appeals for the 7th Circuit. Joseph Barloon of Maryland to the U.S. Court of International Trade. The president has announced 273 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.   Vacancies The federal judiciary currently has 66 vacancies. As of publication, there were 41 pending nominations. According to the Administrative Office of U.S. Courts, an additional two judges have announced their intention to leave active judicial status during Trump’s first term. For more information on judicial vacancies during Trump’s first term, click here. Committee action The Senate Judiciary Committee has reported five new nominees out of committee since our October 12 edition. Amy Coney Barrett, nominee for the U.S. Supreme Court Benjamin Beaton, nominee for the U.S. District Court for the Western District of Kentucky Kristi Haskins Johnson, nominee for the U.S. District Court for the Southern District of Mississippi Taylor McNeel, nominee for the U.S. District Court for the Southern District of Mississippi Kathryn Kimball Mizelle, nominee for the U.S. District Court for the Middle District of Florida Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count. Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees. Or, if you prefer, we also maintain a list of individuals President Trump has nominated. In the next several Bold Justice editions, we’re taking a closer look at the U.S. Supreme Court justices. Today, we’re learning about Associate Justice Samuel Alito. Alito has been an associate justice since January 31, 2006. President George W. Bush (R) nominated Alito on November 10, 2005, to succeed Sandra Day O’Connor. The U.S. Senate voted to confirm Alito 58-42 on January 31, 2006. Before joining the U.S. Supreme Court, Alito was a judge on the U.S. Court of Appeals for the 3rd Circuit. Before that, he was a U.S. attorney for the District of New Jersey, a deputy assistant attorney general in the U.S. Department of Justice, and an assistant to the U.S. solicitor general. Click here to learn more about Alito’s professional career. Alito was born in Trenton, New Jersey, in 1950. He earned an A.B. from Princeton University in 1972 and a J.D. from Yale Law School in 1975, where he was an editor of the Yale Law Journal. After law school, Alito was a law clerk to Judge Leonard Garth on the U.S. Court of Appeals for the 3rd Circuit. Alito was drafted to serve in the Vietnam War on December 1, 1969. He deferred his service while enrolled in college. At Princeton, he joined the Army Reserve Officers’ Training Corps (ROTC) and was commissioned as a second lieutenant after his graduation. He deferred his service a second time as he entered Yale Law School. After graduation from law school, he served three months of active service from September to December of 1975. Alito served in the Army Reserve from 1972 until 1980, when he was honorably discharged with the rank of captain. In the 2019-2020 term, Alito wrote the following opinions: Hernandez v. Mesa Intel Corp. Investment Policy Committee v. Sulyma Kansas v. Garcia Babb v. Wilkie Department of Homeland Security v. Thuraissigiam Our Lady of Guadalupe School v. Morrissey-Berru (Consolidated with St. James School v. Biel) We’ll be back November 9 with a new edition of Bold Justice.  Contributions Sara Reynolds compiled and edited this newsletter, with contributions from Kate Carsella and Jace Lington. Bold Justice has thousands of loyal readers each week. Want to reach them? Advertise in this email! Contact ads@ballotpedia.org for details. Ballotpedia depends on the support of our readers. The Lucy Burns Institute, publisher of Ballotpedia, is a 501(c)(3) nonprofit organization. All donations are tax deductible to the extent of the law. Donations to the Lucy Burns Institute or Ballotpedia do not support any candidates or campaigns.   Click here to support our work   Copyright © %%current_year_YYYY%%, All rights reserved. Our mailing address is: %%account_address%%     Decide which emails you want from Ballotpedia. Unsubscribe or update your subscription preferences.