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Bold Justice: SCOTUS grants review in 14 additional cases

Bold Justice by Ballotpedia

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

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:

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

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

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

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

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

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

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

U.S. Court of Appeals for the Federal Circuit

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.

Image of Elena Kagan

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:

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.



Bold Justice: SCOTUS begins January sitting

Bold Justice by Ballotpedia

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.

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.

Image of Elena Kagan
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:

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.



Bold Justice: Court begins December sitting

Bold Justice by Ballotpedia

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.


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.

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.

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.

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.

Image of Elena Kagan

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:



Bold Justice: Court considers ACA’s individual mandate



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Ballotpedia's Bold Justice

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.


We #SCOTUS so you don't have to

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.

SCOTUS trivia

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?

  1. Nine
  2. Five
  3. Two
  4. One

Choose an answer to find out!


Federal Court action

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.

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.

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.

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.


Court news

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:


Looking ahead

We’ll be back December 7 with a new edition of Bold Justice.

Contributions

Sara Reynolds compiled and edited this newsletter.



Bold Justice: Amy Coney Barrett joins the court



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Ballotpedia's Bold Justice

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.


We #SCOTUS so you don't have to

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.

SCOTUS trivia

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?

  1. 22
  2. 14
  3. 11
  4. 9

Choose an answer to find out!


Federal Court action

Confirmations

The Senate has confirmed two new nominees since our October 12 issue.

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.

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.

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.


Court news

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:


Looking ahead

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.

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Bold Justice: U.S. Supreme Court to hear four hours of oral argument

Welcome to the October 12 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. SCOTUS began its new term last week. Keep up with the latest court news by following us on Twitter or subscribing to the Daily Brew.

Arguments

The Supreme Court will hear four 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 35 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:

  • October 13
    • United States v. Briggs is consolidated with United States v. Collins. In United States v. Briggs, a general court-martial convicted Michael Briggs of rape in 2014 for an act that occurred in 2005. Briggs appealed the conviction to the U.S. Air Force Court of Criminal Appeals, asserting the statute of limitations had expired. The Air Force Court of Criminal Appeals rejected Briggs’ statute of limitations assertion and affirmed the court-martial’s decision.

      Briggs appealed to the U.S Court of Appeals for the Armed Forces, which affirmed in part the Air Force Court of Appeals’ ruling. Briggs also appealed to the U.S. Supreme Court, which vacated the U.S. Court of Appeals for the Armed Forces’ decision and remanded the case. On remand, the Court of Appeals for the Armed Forces reversed its earlier judgment, dismissed the charge against Briggs, and vacated the sentence. The U.S. government appealed to the U.S. Supreme Court.

      The issue: Whether the Court of Appeals for the Armed Forces was wrong to conclude, against its own precedent, that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if the rape was discovered and charged within five years.

    • In City of Chicago, Illinois v. Fulton, the City of Chicago towed and impounded Robbin Fulton’s vehicle in 2017. Fulton filed a petition for Chapter 13 bankruptcy and a repayment plan in federal bankruptcy court. Fulton requested that the City return her vehicle. The City declined to do so. Then, Fulton moved for sanctions against the City of Chicago, arguing it was required to return her vehicle. The City asserted that it would retain possession of the vehicle and cited an exemption from the Bankruptcy Code’s automatic stay.

      The bankruptcy court ruled that the City was required to return the vehicle. The City moved to stay the order, but the court denied the request. The City returned the vehicle and appealed to the 7th Circuit. The court affirmed the bankruptcy court’s ruling.

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

  • October 14
    • In Torres v. Madrid, New Mexico State Police Officers Richard Williamson and Janice Madrid attempted to serve an arrest warrant on Kayenta Jackson at an Albuquerque apartment complex in 2014. Roxanne Torres was in the complex parking lot. When the officers approached her vehicle, Torres entered her vehicle, thinking the officers were carjackers, and drove the car forward. The officers shot her twice.

      Torres drove from the scene and was treated at a hospital for her injuries. She was arrested and pleaded no contest to three crimes related to the event. In 2016, Torres sued the officers in U.S. District Court claiming excessive force. The district court interpreted the complaint as asserting excessive force claims under the Fourth Amendment. The court ruled that the officers were entitled to qualified immunity and that since the officers had not seized Torres at the time of the shooting, they had not violated the Fourth Amendment. The U.S. Court of Appeals for the 10th Circuit affirmed the district court’s ruling. Torres filed an appeal with the Supreme Court.

      The issue: “Is an unsuccessful attempt to detain a suspect by use of physical force a ‘seizure’ within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or must physical force be successful in detaining a suspect to constitute a ‘seizure,’ as the Tenth Circuit and the D.C. Court of Appeals hold?”

    • In Pereida v. Barr, Clemente Avelino Pereida, a citizen and native of Mexico, was convicted of attempted criminal impersonation in Nebraska. The U.S. Department of Homeland Security charged Pereida with removal from the country (also known as removability). Pereida filed an application for relief from removal. An immigration judge found that his conviction was a crime involving moral turpitude, barring relief from removal. On appeal, the Board of Immigration Appeals held Pereida had not proven his conviction was not a crime involving moral turpitude and as a result, he was statutorily ineligible for cancellation of removal. The U.S. Court of Appeals for the 8th Circuit denied Pereida’s petition for review. Pereida appealed to the Supreme Court.

      The issue: Does a criminal conviction of a non-U.S. citizen prohibit that individual from applying for relief from deportation when the record of conviction is “merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.”

Upcoming SCOTUS dates

Here are the upcoming dates of interest in October:

  • October 13:
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in two cases.
  • October 14: SCOTUS will hear arguments in two cases.
  • October 16: SCOTUS will conference. A conference is a private meeting of the justices.
  • October 19: SCOTUS will release orders.
  • October 30: SCOTUS will conference.

When was the first color photograph of the SCOTUS justices taken?

  1. 1932
  2. 1948
  3. 1965
  4. 1980

Choose an answer to find out!

Confirmations

The Senate has not confirmed any new nominees since our October 5 issue.

Since January 2017, the Senate has confirmed 218 of President Trump’s judicial nominees—161 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Nominations

President Trump has not announced any new Article III nominees since our October 5 edition.

The president has announced 271 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 64 vacancies. As of publication, there were 40 pending nominations.

According to the Administrative Office of U.S. Courts, an additional four 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 not reported any new nominees out of committee since our October 5 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 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 Stephen Breyer.

Breyer has been an associate justice since August 3, 1994. President Bill Clinton (D) nominated Breyer on May 17, 1994 to succeed Harry Blackmun. The U.S. Senate confirmed Breyer by an 87-9 vote on July 29, 1994.

Before joining the U.S. Supreme Court, Breyer was a judge on the U.S. Court of Appeals for the 1st Circuit. Before that, he was a member of the U.S. Sentencing Commission, chief counsel of the U.S.  Senate Judiciary Committee, and a professor at Harvard University’s Kennedy School of Government. Click here to learn more about Breyer’s professional career.

Breyer was born in San Francisco, California, in 1938. He earned a B.A. in philosophy from Stanford University in 1959, a B.A. from Magdalen College at the University of Oxford as a Marshall Scholar in 1961, and an LL.B. from Harvard Law School in 1964. Breyer was the article editor at the Harvard Law Review. After law school, Breyer was a law clerk to U.S. Supreme Court Associate Justice Arthur Goldberg.

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

We’ll be back November 2 with a new edition of Bold Justice.



Bold Justice: U.S. Supreme Court begins October 2020 term

 

Welcome to the October 5 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. SCOTUS begins its new term today! Keep up with the latest court news by following us on Twitter or subscribing to the Daily Brew.

Arguments

The Supreme Court will hear six hours of arguments this week. 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:

  • October 5
    • In Carney v. Adams, James Adams, a retired Delaware lawyer, sued Delaware Gov. John Carney (D) over Article IV, Section 3 of the Delaware Constitution. Article IV, Section 3 says that no more than the bare majority of judges on a given Delaware court can be of the same political party.

      Adams argued the provision violated the First Amendment. Carney argued Adams did not have the legal right, or standing, to file a lawsuit. A federal magistrate judge ruled the provision was unconstitutional.

      On appeal, the U.S. Court of Appeals for the 3rd Circuit affirmed in part and reversed in part the U.S. district court’s ruling. Carney appealed to the U.S. Supreme Court, arguing the 3rd Circuit’s decision conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit.

      The issue: Does Article IV, Section 3 of the Delaware Constitution violate the First Amendment?

    • Texas v. New Mexico concerns an interstate water dispute between Texas and New Mexico. It is part of the court’s original jurisdiction, meaning SCOTUS is the first and only court to hear the case.

      Texas and New Mexico entered a compact about use of the Pecos River. The U.S. Supreme Court appointed a river master to issue an annual report summarizing New Mexico’s compliance with its compact obligations. In 2014, the Pecos River flooded. New Mexico released the flood water downstream, even though Texas’ reservoir could not hold the extra water.

      Texas alleges the water was wasted. In mid-2018, New Mexico asked the river master to reduce its delivery obligations because of the 2014-2015 flood water. The river master retroactively changed the 2015 report, against Texas’ objections.

      Texas challenged the river master’s retroactive modifications and his 2018 annual report. While that challenge was pending, the river master filed a 2019 annual report, which Texas also petitioned the U.S. Supreme Court to review.

      The issue: Whether the river master was wrong to retroactively change the 2015 annual report and to charge Texas for evaporative losses without authority under the Compact.

  • October 6
    • In Rutledge v. Pharmaceutical Care Management Association, the Pharmaceutical Care Management Association filed a lawsuit challenging a 2015 Arkansas law. The law included mandates for pharmacy reimbursement for drug costs, new requirements for pharmacy benefits managers’ updates to maximum allowable cost lists, and administrative appeal procedures.

      Pharmaceutical Care Management Association sued on behalf of its pharmacy benefits manager members, claiming the Employee Retirement Income Security Act of 1974 (ERISA) and Medicare Part D preempted the state law. The association also argued the law was unconstitutional.

      The U.S. District Court for the Eastern District of Arkansas ruled that ERISA preempted the law, but Medicare Part D did not. The district court also ruled the law was constitutional. On appeal, the 8th Circuit affirmed in part and reversed in part the district court’s decision, and remanded the case for entry of judgment in favor of the Pharmaceutical Care Management Association.

      The issue: Whether the 8th Circuit incorrectly held that the ERISA preempted a 2015 Arkansas law, which is similar to laws in a majority of states, violating the Supreme Court’s precedent that ERISA does not preempt rate regulation.

    • In FNU Tanzin v. Tanvir, Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari, were born outside of the United States and later moved to the U.S., where they became U.S. citizens or lawful permanent residents. The three men, who practice Islam, sued FBI agents in their official and individual capacities in the U.S. District Court for the Southern District of New York. Tanvir, Algibah, and Shinwari claimed the FBI agents retaliated against them after the three men, citing their religious beliefs, declined to act as informants. Plaintiffs alleged the agents violated the Administrative Procedure Act, the Religious Freedom Restoration Act (RFRA), as well as their First and Fifth Amendment rights.

      The U.S. District Court dismissed the claims against the agents in their individual capacity. The three men appealed to the 2nd Circuit Court of Appeals, which reversed the lower court’s ruling. FBI Special Agent FNU (First Name Unknown) Tanzin appealed to the U.S. Supreme Court after the 2nd Circuit denied his motion for a rehearing en banc.

      The issue: Whether the RFRA provision 42 U.S.C. 2000bb-1(c) authorizes monetary damages against federal employees sued in their individual capacities.

      42 U.S.C. 2000bb-1(c) says a person whose religious exercise has been violated “may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”

  • October 7
    • In Google LLC v. Oracle America Inc., Oracle sued Google for copyright and patent infringement after Google used portions of Oracle-owned Java programming software for Android mobile devices. The case was brought to the U.S. District Court for the Northern District of California twice and appealed to the U.S. Court of Appeals for the Federal Circuit twice.

      In the first trial and appeal, a jury found that Google infringed on Oracle’s copyrights, but was deadlocked on whether Google’s copying was a fair use. After the verdict, the district court dismissed Oracle’s claim, holding the programming was not copyrightable as a matter of law. The appeals court reversed the district court’s ruling.

      In the second trial and appeal, the district court ruled in favor of Google. The appeals court reversed the district court’s ruling and remanded the case.

      The issues:

      (1) Does copyright protection extend to a software interface?

      (2) Does Google’s use of a software interface to create a new computer program constitute fair use?

    • Ford Motor Company v. Montana Eighth Judicial District Court was consolidated with Ford Motor Company v. Bandemer.

      In Ford Motor Company v. Montana Eighth Judicial District Court, Montana resident Markkaya Jean Gullett died after one of the tires of her 1996 Ford Explorer experienced a tread/belt separation. The vehicle lost stability and rolled into a ditch. A personal representative sued Ford for liability and negligence.

      In Ford Motor Company v. Bandemer, Minnesota resident Adam Bandemer sustained a severe brain injury as a passenger in a 1994 Ford Crown Victoria. The driver of the vehicle rear-ended a county snowplow and the car ended up in a ditch. Bandemer alleged that the passenger-side airbag did not deploy during the accident and sued Ford for product liability, negligence, and breach of warranty claims.

      In both cases, Ford Motor Company moved to dismiss the claims in state district court, citing a lack of personal jurisdiction. Ford’s motions were denied. On appeal in both cases, the state courts of appeal affirmed the lower court rulings. Ford appealed the cases to the respective state supreme courts, which affirmed the rulings of the courts of appeal.

      The issue (from SCOTUSblog): “Whether the ‘arise out of or relate to’ requirement of the 14th Amendment’s due process clause is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.”

Death of Justice Ruth Bader Ginsburg

Associate Justice Ruth Bader Ginsburg died on September 18, 2020. Ginsburg joined the court on August 5, 1993. President Bill Clinton (D) nominated her to the court, and the U.S. Senate confirmed the nomination by a 96-3 vote on August 3, 1993.

Before joining the U.S. Supreme Court, Ginsburg was a judge on the U.S. Court of Appeals for the D.C. Circuit. Before that, she worked in a variety of roles, including as a fellow for the Center for Advanced Study in the Behavioral Sciences, in Stanford, California; general counsel for the American Civil Liberties Union; a consultant for the U.S. Commission on Civil Rights, and a professor at the Rutgers School of Law.

Ginsburg was born in Brooklyn, New York, on March 15, 1933. She earned her bachelor’s degree from Cornell University in 1954. Ginsburg then enrolled at Harvard Law School, later transferring to Columbia Law School. She earned her LL.B. degree from Columbia in 1959.

On September 29, 2020, President Trump nominated Amy Coney Barrett to succeed Ginsburg. Barrett is a judge on the U.S. Court of Appeals for the 7th Circuit.

  • Click here to learn more about Justice Ginsburg.
  • Click here to learn more about Judge Barrett.
  • Click here to learn more about the nomination process.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in October:

  • October 5: SCOTUS began its 2020-2021 term, hearing arguments in two cases.
  • October 6: SCOTUS will hear arguments in two cases.
  • October 7: SCOTUS will hear arguments in two cases.
  • October 9: SCOTUS will conference. A conference is a private meeting of the justices.
Since 1962, what is the average amount of time a Supreme Court seat has been vacant (defined as the length of time between a justice’s departure date and the swearing-in of their successor)?

  1. 422 days
  2. 391 days
  3. 88 days
  4. 77 days

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 September 2 to October 1.

Highlights

  • Vacancies: There have been two new judicial vacancies since the previous report. There are 59 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the U.S. Court of Federal Claims and the United States territorial courts, 64 of 890 active federal judicial positions are vacant.
  • Nominations: There have been four new nominations since the previous report.
  • Confirmations: There have been 15 new confirmations since the previous report.

Vacancy count for October 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 left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, a presidential nomination is required to fill vacancies. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. District Court vacancies

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

New nominations

President Trump has announced four new nominations since the previous report.

  • Amy Coney Barrett, to the U.S. Supreme Court.
  • Charles Atchley, to the United States District Court for the Eastern District of Tennessee.
  • Katherine Crytzer, to the United States District Court for the Eastern District of Tennessee.
  • Joseph Dawson, to the United States District Court for the District of South Carolina.

The president has announced 271 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 September 2 and October 1, the Senate confirmed 15 of the president’s nominees to Article III courts.

Between January 2017 and October 1, 2020, the Senate confirmed 218  of President Trump’s judicial nominees—161 district court judges, 53 appeals court judges, two Court of International Trade judges, and two 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 Clarence Thomas.

Thomas has been an associate justice since October 18, 1991. President George H.W. Bush (R) nominated Thomas on July 1, 1991, to succeed Thurgood Marshall. The U.S. Senate confirmed Thomas by a 52-48 vote on October 15, 1991.

Before joining the U.S. Supreme Court, Thomas was a judge on the U.S. Court of Appeals for the D.C. Circuit. Before that, he was the chairman of the U.S. Equal Employment Opportunity Commission, an assistant secretary of education in the U.S. Department of Education’s Office of Civil Rights, and a legislative assistant for Sen. John Danforth (R-Mo.).

Thomas was born in Savannah, Georgia, in 1948. Raised Roman Catholic, Thomas considered entering the priesthood at the age of 16 and attended St. John Vianney’s Minor Seminary. He then continued his studies at Conception Abbey Seminary in Missouri, but left to attend the College of the Holy Cross in Worcester, Massachusetts. He graduated in 1971 with a B.A., cum laude, in English literature. Thomas earned his J.D. from Yale Law School in 1974.

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

We’ll be back October 12 with a new edition of Bold Justice.



Amy Coney Barrett nominated to the U.S. Supreme Court

Welcome to the September 30 special edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Keep up to date with Amy Coney Barrett’s nomination by following us on Twitter or subscribing to the Daily Brew.

About Amy Coney Barrett

On September 26, President Donald Trump (R) announced his intent to nominate Judge Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg on the U.S. Supreme Court. Justice Ginsburg died on September 18, 2020, at the age of 87.

Barrett is a judge on the U.S. Court of Appeals for the 7th Circuit. Trump nominated her to the 7th Circuit on May 8, 2017. The Senate voted 55-43 to confirm her appointment on October 31, 2017. Barrett clerked for U.S. Supreme Court Associate Justice Antonin Scalia from 1998 to 1999.

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.

  • Click here to learn more about Judge Barrett.
  • Click here to learn more about noteworthy cases in which Judge Barrett participated.
  • Click here to learn more about Judge Barrett’s nomination process.

Process to fill the seat

Although the rules for appointing and confirming a U.S. Supreme Court justice are set out in the U.S. Constitution, the process for choosing nominees is not codified in law. Past presidents have received lists of recommendations from the White House counsel, the attorney general and lawyers in the Justice Department’s Office of Legal Counsel.

Individuals and organizations outside of the administration also influence the nominating process. The American Bar Association (ABA), through its 15-member Committee on the Federal Judiciary, rates nominees as “well qualified,” “qualified” or “not qualified.” Others also lobby the president to choose nominees sympathetic to their views or to oppose those with whom they differ.

Some presidents have had a litmus test or key position, often on an important social issue, that a prospective justice must hold to be considered for nomination. However, a nominee’s views do not always conform to their future opinions. Some justices have ruled in ways that surprised the presidents who nominated them.

SCOTUS vacancy length

Since 1962, the average amount of time a Supreme Court seat has been vacant is 88 days (defined as the length of time between a justice’s departure date and the swearing-in of their successor). Four of these vacancies lasted for only a few hours each, with a successor being sworn in the same day the retiring justice officially left the bench.

The longest vacancy using this definition was 422 days, following the death of Justice Antonin Scalia. The second longest vacancy since 1962 under this definition was 391 days, after Justice Abe Fortas retired on May 14, 1969, in the wake of a series of ethics scandals.

If the length of a vacancy is defined as the amount of time between a justice’s departure date and the confirmation date of their successor, the average is 77 days. The vacancies following Scalia’s death and Fortas’ retirement are still the longest since 1962, at 419 and 363 days, respectively.

Before the 1960s, there were two much longer vacancies on the court. During the presidencies of John Tyler and James K. Polk in the mid-19th century, the seat once held by Justice Henry Baldwin was vacant for 841 days—nearly two-and-a-half years. Baldwin died in office on April 21, 1844. His eventual successor, Robert Grier, was confirmed by the Senate and sworn into office on August 10, 1846. In the interim, the Senate rejected four nominees.

Another lengthy vacancy took place following the death of Justice Peter Daniel on May 31, 1860. Daniel’s seat was vacant for 781 days. President Abraham Lincoln’s (R) nominee, Samuel Miller, was confirmed and sworn in on July 21, 1862.

Click here for more information on the historic context of U.S. Supreme court vacancies.

Judicial confirmations over time by president

Between January 2017 and September 28, 2020, the Senate confirmed 218 of President Trump’s judicial nominees—161 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

As of September 1, Trump had nominated and the U.S. Senate had confirmed two nominees to the U.S. Supreme Court. Trump was tied with Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R), for the most U.S. Supreme Court confirmations through September 1 of the fourth year of all presidencies, dating back to Jimmy Carter (D).

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.

We’ll be back October 5 with a new edition of Bold Justice.


Bold Justice: No U.S. Circuit Court of Appeals vacancies

Welcome to the September 14 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. There’s less than a month to go before the Supreme Court begins its new term! We know you are as excited as we are. In the meantime, follow us on Twitter or subscribe to the Daily Brew for all the latest information.

The court will begin its 2020-2021 term on October 5. So far, the justices have agreed to hear 31 cases. Of those, 12 were originally scheduled for the 2019 term but were delayed because of the coronavirus pandemic. Click here to read more about SCOTUS’ 2020-2021 term.

The Supreme Court finished its 2019-2020 term on July 9. The court agreed to hear arguments in 74 cases, but heard arguments in only 61 cases due to the coronavirus pandemic. Click here to read more about SCOTUS’ 2019-2020 term.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in September and October:

  • September 29: SCOTUS will conference. A conference is a private meeting of the justices.
  • October 5: SCOTUS will begin its 2020-2021 term, hearing arguments in two cases.

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 August 3 to September 1.

Highlights

  • Vacancies: There have been no new judicial vacancies since the previous report. There are 72 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, 78 of 890 active federal judicial positions are vacant.
  • Nominations: There have been five new nominations since the previous report.
  • Confirmations: There has been one new confirmation since the previous report.

Vacancy count for September 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

No judges have left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. The president must make a nomination to fill vacant Article III judicial positions. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. Circuit Court of Appeals vacancies

Seventeen U.S. Court of Appeals judgeships were vacant when President Trump was inaugurated on January 20, 2017. Today, there are no U.S. Circuit Court of Appeals vacancies. According to the Administrative Office of U.S. Courts, no U.S. Circuit Court of Appeals judges have announced their intent to leave active judicial status during the remainder of Trump’s current term.

This is the first time there have been no federal appeals court vacancies since at least 1977. Between January 1, 1977, and January 1, 2019, an average of 9.6% of U.S. Circuit Court of Appeals judgeships were vacant.

U.S. District Court vacancies

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

New nominations

President Trump has announced five new nominations since the previous report.

  • Kathryn Kimball Mizelle, to the U.S. District Court for the Middle District of Florida.
  • Benjamin Beaton, to the U.S. District Court for the Western District of Kentucky.
  • Hector Gonzalez, to the U.S. District Court for the Eastern District of New York.
  • Ryan McAllister, to the U.S. District Court for the Northern District of New York.
  • David Woll, to the U.S. District Court for the Eastern District of New York.

The president has announced 267 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 August 3 and September 1, the Senate confirmed one of the president’s nominees to an Article III court.

Between January 2017 and September 1, 2020, the Senate confirmed 203 of President Trump’s judicial nominees—146 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Trump is tied with President Bill Clinton (D) for the second-most Article III judicial appointments through September 1 of his fourth year of all presidencies since Jimmy Carter (D). The Senate confirmed 248 of Carter’s federal judicial appointees at this point in his presidency.

The average number of confirmed presidential judicial appointees through September 1 of a president’s fourth year in office is 191.

The median number of U.S. Court of Appeals appointees is 35. Carter appointed the most with 54, while Reagan appointed the least with 28. Trump’s 53 appointments make up 30% of the 179 federal appellate court judgeships.

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 nine U.S. Supreme Court justices. Today, we’re learning about Chief Justice John Roberts.Roberts has been chief justice since September 29, 2005. President George W. Bush (R) originally nominated Roberts on July 19, 2005, to be an associate justice succeeding Sandra Day O’Connor. President Bush withdrew his nomination after Chief Justice William Rehnquist died on September 3, 2005. On September 6, the president renominated Roberts to be the 17th chief justice of the U.S. Supreme Court. The U.S. Senate confirmed Roberts by a 78-22 vote on September 29, 2005.

Before joining the U.S. Supreme Court, Roberts was a judge on the U.S. Court of Appeals for the D.C. Circuit. Before that, he worked in private practice and for the U.S. Department of Justice. After law school, Roberts was a law clerk to U.S. Supreme Court Justice William Rehnquist.

Roberts was born in Buffalo, N.Y., on January 27, 1955. He is a practicing Roman Catholic. He attended private schools as a child and graduated from La Lumiere School, an all-boys Roman Catholic boarding school in LaPorte, Indiana, as class valedictorian in 1973.

Roberts earned an undergraduate degree, summa cum laude, from Harvard University in 1976. He wrote his thesis on British liberalism in the early 20th century. Roberts also earned his J.D., magna cum laude, from Harvard Law School in 1979. During his legal studies, Roberts served as managing editor of the Harvard Law Review.

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

We’ll be back October 5 with a new edition of Bold Justice.


Bold Justice: Taking a look at Espinoza v. Montana Department of Revenue

Welcome to the August 10 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S. Need to keep up on your federal court news during the dog days of summer? Follow us on Twitter or subscribe to the Daily Brew for all the latest information.

In this edition, we’re taking a closer look at Espinoza v. Montana Department of Revenue, which the U.S. Supreme Court decided on June 30, 2020. The case concerned whether the government can exclude religious institutions from student-aid programs.

Background

A 2015 Montana law established a tax credit scholarship program that matched—up to $150 a year—taxpayer donations to organizations that issued scholarships for private school students. To ensure compliance with the Montana Constitution, the state Department of Revenue established Rule 1, which barred recipients from using the scholarships at religiously-affiliated private schools. The plaintiffs, three mothers whose children attended religious-affiliated private schools, challenged Rule 1. The Montana 11th Judicial District ruled in favor of the plaintiffs, prohibiting the rule’s enforcement. On appeal, the Montana Supreme Court reversed the lower court, holding the law violated Article X, Section 6 of the state constitution.

In a 5-4 opinion, the U.S. Supreme Court held Article X, Section 6 violated the Free Exercise clause. Writing for the majority, Chief Justice Roberts said: “A state need not subsidize private education…but once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Blaine Amendments in state constitutions

Article X, Section 6 of the Montana Constitution is known as Montana’s Blaine Amendment. Blaine Amendments refer to provisions in state constitutions that bar public funds from going to religiously-affiliated schools. Montana adopted a Blaine Amendment when it became a state in 1889. Article X, Section 6 was incorporated in the state’s 1972 constitution.

U.S. Rep. James G. Blaine of Maine proposed the first Blaine Amendment on December 14, 1875, in reaction to efforts by religious groups, mainly the Catholic Church, to establish parochial schools with public funding. The amendment passed in the U.S. House of Representatives but did not receive the necessary two-thirds vote in the U.S. Senate.

Blaine Amendments were added to the constitutions of 38 states. Louisiana voters repealed their state’s Blaine Amendment in 1974, leaving 37 states with Blaine Amendments in their constitutions as of 2020. Click here for more information on Blaine Amendments in state constitutions.

Media coverage and commentary

The ruling’s affect on public school funding
“Never in more than two centuries of American history has the free exercise clause of the First Amendment been wielded as a weapon to defund and dismantle public education. It will hurt both the 90 percent of students who attend neighborhood public schools, by siphoning off needed funds, and, in the long term, those who attend religious schools by curtailing their freedom with the accountability that comes with tax dollars.”

Randi Weingarten, president of the American Federation of Teachers, June 30, 2020

“When you have a state where … a significant minority of parents are using private schools, they’re going to be voting against increasing taxes for public education. But if they are able to share in the education pot, they may move to supporters of greater aid to education.”

Professor Michael McConnell, Stanford Law School, July 30, 2020

The ruling’s affect on free exercise of religion
“We celebrate today’s Supreme Court decision on religious schools, which removes one of the biggest obstacles to better educational opportunities for all children. States may no longer hide behind rules motivated by insidious bias against Catholics, known as Blaine Amendments, to exclude religious schools from public benefits. Laws that condition public benefits, like need-based academic scholarships, on religious status demonstrate state-sanctioned hostility to religion, pressure people and institutions to censor their religious views, and stigmatize disfavored religions. The Trump Administration believes that school choice is a civil rights issue, and that no parent should be forced to send their child to a failing school. President Donald J. Trump will fight for school choice, and he will always defend our first freedom: the free exercise of religion.”

Statement from the Trump administration, June 30, 2020

“Other Christians also briefed in favor of Montana. Nonetheless, Jews, other Christians and minority religions are now expected to pay for programs that teach religious ideals with which they disagree. They are especially worried that their tax dollars will now pay for schools that do not protect LGBTQ rights.”

Professor Leslie Griffin, University of Nevada, August 4, 2020

Click here for more information on media coverage and commentary of Espinoza.

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 July 2 to August 3.

Highlights

  • Vacancies: There have been two new judicial vacancies since the previous report. There are 73 vacancies out of 870 active Article III judicial positions on courts covered in this report. Including the United States Court of Federal Claims and the United States territorial courts, 79 of 890 active federal judicial positions are vacant.
  • Nominations: There have been no new nominations since the previous report.
  • Confirmations: There have been two new confirmations since the previous report.

Vacancy count for August 3, 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. As Article III judicial positions, the president must make a nomination to fill the vacancy. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

U.S. District Court vacancies

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

New nominations

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

The president has announced 262 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 July 2 and August 3, the Senate confirmed two of the president’s nominees to Article III courts.

Between January 2017 and August 3, 2020, the Senate confirmed 202 of President Trump’s judicial nominees—145 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Trump is tied with President Bill Clinton (D) for the second-most Article III judicial appointments through August 1 of his fourth year of all presidencies since Jimmy Carter (D). The Senate confirmed 247 of Carter’s federal judicial appointees at this point in his presidency.

The average number of confirmed presidential judicial appointees through August 1 of the fourth year in office is 188.

The median number of U.S. Court of Appeals appointees is 35. Carter appointed the most with 54, while Reagan appointed the least with 27. Trump’s 53 appointments make up 29.6% of the total 179 judgeships across the courts of appeal.

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.


We’ll be back September 14 with a new edition of Bold Justice.


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