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Bold Justice: June 29, 2020

Welcome to the June 29 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 something to read while you’re barbequing on July 4? Check us out on Twitter or subscribe to the Daily Brew.

Arguments

The Supreme Court has finished hearing arguments for the 2019-2020 term. The court agreed to hear arguments in 74 cases, but heard arguments in only 61 cases due to the coronavirus pandemic.

Thirteen cases have not been scheduled for argument. Of those, 12 are set to be rescheduled for the October 2020-21 term. The cases were originally scheduled for oral argument in March and April, but those sessions were postponed due to the coronavirus pandemic.

The remaining unscheduled case is Sharp v. Murphy. SCOTUS never scheduled arguments for Sharp v. Murphy in the current term. Instead, the justices agreed to hear another case, McGirt v. Oklahoma, which concerns the same legal issues. Oral arguments for McGirt took place on May 11 and a decision is pending.

Click here to read more about SCOTUS’ current term. Click here to read more about SCOTUS’ upcoming 2020-21 term.

Opinions

SCOTUS has issued two opinions since our June 22 issue. The court has issued rulings in 47 cases so far this term.

Click the links below to read more about the specific cases SCOTUS ruled on since June 22:

June 22

  • Liu v. SEC was argued on March 3, 2020.

    The case: The Securities and Exchange Commission (SEC) sued business partners Charles Liu and Lisa Wang, alleging they had misappropriated funds and defrauded investors in their EB-5 visa business. The U.S. District Court for the Central District of California ruled in favor of the SEC, finding that Liu and Wang violated the Securities Act of 1933, and imposed civil penalties in addition to a disgorgement order requiring Liu and Wang to surrender to the SEC the millions of dollars they raised from investors.

    The 9th Circuit Court of Appeals affirmed the lower court’s ruling. Liu and Wang appealed to the U.S. Supreme Court, arguing the SEC lacked the legal authority to ask the district court to impose a disgorgement order.

    Disgorgement is a “remedy requiring a party who profits from illegal or wrongful acts to give up any profits he or she made as a result of his or her illegal or wrongful conduct.”

    The outcome: In an 8-1 ruling, the court vacated 9th Circuit’s decision and remanded the case. The court said the SEC has the power to seek disgorgement orders as long as the orders do not exceed the wrongdoer’s net profit and as long as the money goes toward repaying any victims.

    Justice Sonia Sotomayor wrote the opinion of the court. Justice Clarence Thomas wrote a dissenting opinion.

June 25

  • Department of Homeland Security v. Thuraissigiam was argued on March 2, 2020.

    The case: Vijayakumar Thuraissigiam, a Sri Lankan native, entered the United States without legal permission in 2017 by crossing the border with Mexico. A U.S. Customs and Border Protection officer apprehended Thuraissigiam and the U.S. Department of Homeland Security (DHS) began expedited removal proceedings. An asylum officer and later an immigration judge decided Thuraissigiam did not have a credible fear of persecution in Sri Lanka.

    Thuraissigiam filed a petition for a writ of habeas corpus in the U.S. District Court for the Southern District of California. The district court dismissed the petition for lack of subject matter jurisdiction, ruling the court was not authorized to review claims under 8 U.S.C. § 1252(e).

    On appeal, the 9th Circuit Court of Appeals reversed and remanded the district court’s ruling. The 9th Circuit held that § 1252(e)(2) violated Thuraissigiam’s rights under the U.S. Constitution’s Suspension Clause, which bars suspension of a writ of habeas corpus once it has been issued. DHS appealed to the U.S. Supreme Court.

    8 U.S.C. § 1252(e) provides that judicial review of expedited removal orders is available in habeas corpus proceedings with certain limitations.

    The outcome: The court ruled against Thuraissigiam in a 7-2 opinion, holding 8 U.S.C. § 1252(e) does not violate the U.S. Constitution’s Suspension or Due Process clauses. In other words, “asylum-seekers whose initial asylum claims are denied by immigration officials have no right to a hearing in federal court.”

    Justice Samuel Alito delivered the court’s opinion. Justice Thomas filed a concurring opinion. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, filed an opinion concurring in the judgment.

    Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented.

How are opinions released?

The court announces opinions on the homepage of its website, supremecourt.gov, and on the Opinions of the Court – 2019 page. Due to the coronavirus pandemic, the court has been releasing opinions online.

SCOTUS does not announce in advance which cases will be decided on a given day or how many opinions will be released. Opinions are released in order of reverse seniority of the authoring justice in 10-minute intervals.

For more information on how SCOTUS releases orders and opinions, click here.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • June 29: SCOTUS will release orders and opinions.
  • June 30: SCOTUS will release opinions.
  • July 1: SCOTUS will conference. A conference is a private meeting of the justices.
  • July 2: SCOTUS will release orders.

The U.S. Supreme Court usually finishes releasing all opinions for the term by the end of June. This year might be different. When was the last time SCOTUS issued opinions into July?

  1. 2001
  2. 1996
  3. 1989
  4. 1968

Confirmations

The Senate has confirmed one new nominee since our June 22 issue.

Since January 2017, the Senate has confirmed 200 of President Trump’s judicial nominees—143 district court judges, 53 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

There are two upcoming Circuit Court vacancies. Andrew Brasher was already confirmed to succeed Judge Ed Carnes on the 11th Circuit. Carnes is expected to assume senior status on June 30. Justin Walker was confirmed to succeed Judge Thomas Griffith on the D.C. Circuit. Griffith is expected to retire on September 1.

Nominations

President Trump has not announced any new Article III nominees since our June 22 edition.

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.

Vacancies

The federal judiciary currently has 80 vacancies. As of publication, there were 50 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 June 22 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.


We’ll be back on July 13 with a new edition of Bold Justice.


Bold Justice: Twas the night before arguments…

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Bold Justice: Twas the night before arguments…

Twas the night before arguments, and all through the court, not a brief was stirring, not even about tort; the robes were hung by the bench with care, in hopes that the justices soon would be there… 

Welcome to the December 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. While you settle your brains for a long winter nap, follow us on Twitter or subscribe to the Daily Brew to catch up on the latest political news.

We #SCOTUS, so you don’t have to

Arguments

The Supreme Court will hear arguments in six cases this week. Click here to read more about SCOTUS’ current term.

In its October 2018 term, SCOTUS heard arguments in 69 cases. Click here to read more about SCOTUS’ previous term.

Click the links below to read more about the specific cases SCOTUS will hear this week:

December 9

  • In Guerrero-Lasprilla v. Barr, Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported in 1998 after being convicted of aggravated felonies. In 2016, Guerrero-Lasprilla petitioned to reopen his removal proceedings. An immigration judge denied the petition on the grounds it was untimely. The Board of Immigration Appeals denied the appeal. The 5th Circuit Court of Appeals also dismissed the petition for lack of jurisdiction. The case is consolidated with Ovalles v. Barr.

    The issue: (1) Is a request for equitable tolling—in which a plaintiff can bring a claim if they did not discover an injury until after the statute of limitations had expired—judicially reviewable as a “question of law?”

    (2) Whether the criminal alien bar, 8 U.S.C. §1252(a)(2)(C), tempered by §1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a petitioner lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
  • In Thryv Inc. v. Click-To-Call Technologies, LP, Inforocket.com, Inc. sued Keen, Inc. in 2001 for infringement of U.S. Patent No. 5,818,836 (the “836 Patent”). In 2003, the companies merged and the charges were dropped. The companies later became Dex Media, Inc. In 2011, Click-To-Call Technologies, LP (“CTC”) acquired the 836 Patent. In 2012, CTC filed charges of patent infringement against Dex Media. The Patent Trial and Appeal Board (“Board”) allowed for an inter partes review (IPR) of the patent challenge.

    An IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the Patent Trial and Appeal Board as long as the challenge is filed within a statutory time limit.

    CTC challenged the IPR, arguing it was barred from time limitations under Title 35 U.S.C. § 315(b). The Board rejected CTC’s time bar challenge and ruled in favor of Dex Media. On appeal, the U.S. Court of Appeals for the Federal Circuit issued a split decision vacating the Board’s grant of IPR. Dex Media petitioned the U.S. Supreme Court to review the case. In July 2019, Dex Media changed its name to Thryv, Inc.

    The issue: Whether 35 U.S.C. § 314(d) permits appeal of the Board’s decision to institute an IPR upon finding that § 315(b)’s one-year time bar did not apply.

    Title 35 U.S.C. § 314(d) reads, “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”

December 10

  • In Maine Community Health Options v. United States, as part of Section 1342 of the 2010 Patient Protection and Affordable Care Act (ACA), the federal government established a program to lessen the risk of insurers entering the new health insurance marketplace. Under the program, the government agreed to pay a portion of the costs to insurers who experienced higher-than-expected costs. In 2014, Congress included appropriations riders, or provisions, barring the U.S. Department of Health and Human Services from using its appropriations toward Section 1342 payments.

    Insurer Maine Community Health Options sued the federal government to recover nearly $57 million in unpaid debts. Maine Community Health Options believed the government was legally obligated to pay the debts under Section 1342 of the ACA. On appeal, the U.S. Court of Appeals for the Federal Circuit held the government was not obligated to distribute payments under Section 1342 because of Congress’ appropriations provisions.

    The case was consolidated with Moda Health Plan Inc. v. United States and Land of Lincoln Mutual Health Insurance Co. v. United States.

    The issue: According to Amy Howe from SCOTUSblog, “U.S. Supreme Court precedent disfavors allowing Congress to use appropriations acts to repeal laws by implication. In this case, the court will decide whether an appropriations rider may block an agency from using funds to fulfill a statutory requirement without explicitly repealing that underlying requirement.”

  • In Holguin-Hernandez v. U.S., Gonzalo Holguin-Hernandez pleaded guilty to violating his supervised release by committing a new offense. The U.S. District Court for the Western District of Texas revoked his term of supervised release and sentenced him to one year in prison to be served consecutively with the sentence from his new conviction. Holguin-Hernandez challenged his one-year sentence as greater than necessary under 18 U.S.C. § 3553(a). On appeal, the 5th Circuit affirmed the district court’s judgment.

    The issue: Whether a formal objection after the pronouncement of a sentence is necessary to invoke an appellate reasonableness review of the length of a defendant’s sentence.

December 11

  • Monasky v. Taglieri concerns the standard of review for “habitual residence” and how to establish “habitual residence” for purposes of the Hague Convention on the Civil Aspects of International Child Abduction.

    Domenico Taglieri, an Italian, and Michelle Monasky, an American, were a married couple living in Italy when they had a daughter, A.M.T. Both parents began applications for Italian and U.S. passports for their daughter. In 2015, Taglieri revoked his permission for A.M.T.’s U.S. passport. Two weeks later, Monasky took A.M.T. to the United States. Taglieri petitioned the U.S. District Court for the Northern District of Ohio for A.M.T’s return to Italy under the Hague Convention. The district court granted Taglieri’s petition. On appeal, the 6th Circuit Court of Appeals, sitting en banc, affirmed the district court’s ruling.

    The issue: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo—without deference to a prior or lower court’s findingsas seven circuits have held; under a deferential version of de novo review, as the First Circuit has held; or under clear-error review, as the Fourth and Sixth Circuits have held.

    (2) Where an infant is too young to acclimate to her surroundings, whether a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention.
  • In McKinney v. Arizona, James McKinney was convicted of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the sentence after an independent review. A federal district court denied McKinney’s petition for habeas corpus. On appeal, the 9th Circuit Court of Appeals instructed the district court to grant the habeas corpus petition. After another independent review, the Arizona Supreme Court affirmed the death sentence.

    The issue: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

    (2) Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.

Upcoming SCOTUS dates

Here are the upcoming dates of interest in December:

  • December 9: 
    • SCOTUS will release orders.
    • SCOTUS will hear arguments in two cases.
  • December 10: SCOTUS will hear arguments in two cases.
  • December 11: SCOTUS will hear arguments in two cases.
  • December 13: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

On the Supreme Court’s traditional seal, how many stars are beneath the eagle’s claws?

  1. One
  2. Two
  3. Three
  4. None

Choose an answer to find out!

Federal court action

Confirmations

The Senate has confirmed eight nominees since our December 2 issue.

Overall, the Senate has confirmed 172 of President Trump’s judicial nominees—120 district court judges, 48 appeals court judges, two Court of International Trade judges, and two Supreme Court justices—since January 2017.

Nominations

President Trump has not announced any new Article III nominees since our December 2 edition.

The president has announced 234 Article III judicial nominations since taking office Jan. 20, 2017. The president named 69 judicial nominees in 2017 and 92 in 2018. For more information on the president’s judicial nominees, click here.

Judicial nominations by month

Vacancies

The federal judiciary currently has 97 vacancies. As of publication, there were 58 pending nominations.

According to the Administrative Office of U.S. Courts, an additional 18 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 December 2 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 in the spotlight

In each issue of Bold Justice, we highlight a federal court you should know more about. Right now, we’re taking a closer look at the 94 U.S. District Courts. The district courts are the general trial courts of the U.S. federal court system.

There is at least one judicial district for each state, and one each for Puerto Rico and the District of Columbia.  

In this edition, we’re visiting the U.S. District Court for the District of Delaware. The District of Delaware has original jurisdiction over cases filed in Delaware. Decisions of the court may be appealed to the 3rd Circuit Court of Appeals.

The District of Delaware has four authorized judgeships. There are currently no vacancies. The breakdown of current active judges by appointing president is:

  • Barack Obama (D): Two judges
  • Donald Trump (R): Two judges

Looking ahead

Bold Justice will be back January 6 with more information on the federal judiciary.

… We sprang to the court, where the marshall said “oyez,” and arguments began for the day. But Ballotpedia exclaimed, ere the holidays were in sight, happy SCOTUS to all, and to all a good night!



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