SCOTUS issues 8-1 opinion, Chief Justice Roberts dissents

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

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

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

Chief Justice John Roberts filed a dissenting opinion, concluding that nominal damages claims are not a sufficient basis for Article III legal standing in a case.

This was Roberts’ first dissenting opinion in a case argued during the 2020-2021 term as well as his first lone dissent since joining the court in 2005. Roberts filed a dissent in the case Roman Catholic Diocese of Brooklyn v. Cuomo, which was decided without argument.

To date, the court has issued opinions in 19 cases for the current term. Four cases were decided without argument.

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Direct Legislative Appointment method produces the lowest average partisanship confidence score for state supreme court justices according to the Ballotpedia Courts: State Partisanship study. 

Direct legislative appointment yields the lowest average partisan confidence score for state supreme court justices of any method, according to the Ballotpedia Courts: State Partisanship study. The Michigan-Ohio method produced the highest average partisan confidence score of 11 for all justices, while the direct legislative appointment method produced an average partisan confidence score of 5 for its justices.  

In addition to recording the lowest average partisan confidence score for justices, the direct legislative appointment method produced a court balance score of 3.7. The court balance score recorded for direct legislative appointment was the fifth-highest across the eight selection methods. We arrived at a court balance score by finding the average of partisan confidence scores while accounting for the differences between Democrats and Republicans, whereas the average score, also referred to as the pure partisanship score, is the average of all scores without regard to the differences between Democrats and Republicans. 

Although the direct legislative appointment method produced a low average partisanship score for its justices, this could be due to the fact that it is used in fewer states than other methods. Only South Carolina and Virginia use direct legislative appointment.

South Carolina has four justices with mild Republican affiliation and one justice with indeterminate partisan affiliation. The court balance score for South Carolina is 4.2, mildly Republican. The pure partisanship score for South Carolina’s justices is 4.6, compared to the national average of 7.

Virginia has one justice with strong Republican affiliation, three justices with mild Republican affiliation, one justice with mild Democratic affiliation, and two justices with indeterminate partisan affiliation. The court balance score for Virginia is 3.3, mildly Republican. The pure partisanship score for Virginia’s justices is 5.3, compared to the national average of 7.

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Ballotpedia releases federal judicial vacancy count for March 1

Suggested headline: Ballotpedia releases federal judicial vacancy count for March 1

Type: Monthly update

In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from February 1, 2021, to March 1, 2021. Ballotpedia publishes the federal judicial vacancy count at the start of each month.


Vacancies: There have been seven new judicial vacancies since the January 2021 report. There are 64 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, 67 of 890 active federal judicial positions are vacant.

Nominations: There were no new nominations since the January 2021 report.

Confirmations: There have been no new confirmations since the January 2021 report.

New vacancies

There were 64 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 7.4.

• The nine-member U.S. Supreme Court does not have any vacancies.

• Four (2.2%) of the 179 U.S. Appeals Court positions are vacant.

• 59 (8.7%) of the 677 U.S. District Court positions are vacant.*

• One (11.1%) of the nine U.S. Court of International Trade positions is vacant.

*District court count does not include territorial courts.

Seven judges left active status, creating Article III life-term judicial vacancies, since the previous vacancy count. As Article III judicial positions, vacancies must be filled by a nomination from the president. Nominations are subject to confirmation on the advice and consent of the U.S. Senate.

• Judge Vanessa Bryant assumed senior status on the U.S. District Court for the District of Connecticut.

• Judge Solomon Oliver assumed senior status on the U.S. District Court for the Northern District of Ohio.

• Judge Victoria Roberts assumed senior status on the U.S. District Court for the Eastern District of Michigan.

• Judge Carmen Cerezo retired from the U.S. District Court for the District of Puerto Rico.

• Judge Janet Neff assumed senior status on the U.S. District Court for the Western District of Michigan.

• Judge Tim Savage assumed senior status on the U.S. District Court for the Eastern District of Pennsylvania.

• Judge Paul Barbadoro assumed senior status on the U.S. District Court for the District of New Hampshire.

U.S. Court of Appeals vacancies

The following chart tracks the number of vacancies on the United States Court of Appeals from the inauguration of President Joe Biden (D) to the date indicated on the chart.

The following maps show the number of vacancies on the United States Court of Appeals at the inauguration of President Joe Biden (D) and as of March 1, 2021.

New nominations

As of March 1, 2021, President Joe Biden (D) had not announced any new nominations.

New confirmations

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

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SCOTUS vacates appellate court ruling, remands case to bankruptcy court in City of Chicago, Illinois v. Fulton

Image of the front of the United States Supreme Court building

On January 14, 2021, the Supreme Court of the United States issued a unanimous ruling in the case City of Chicago, Illinois v. Fulton. The case originated from the U.S. Court of Appeals for the 7th Circuit and concerned retained property under the federal Bankruptcy Code. The case was argued during the court’s October term for 2020-2021 on October 13, 2020. Oral arguments were initially scheduled for April 20 but were postponed in response to public health guidance on COVID-19.

The case: The City of Chicago towed and impounded Robbin Fulton’s vehicle. 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. Fulton moved for sanctions against the City of Chicago. 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, imposed sanctions, and sustained Fulton’s objection to the City’s assertion of its status as a secured creditor. 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 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 an 8-0 opinion, the court vacated 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.

As of January 14, 2021, the court had issued opinions in 11 cases this term. Four cases were decided without argument.

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State supreme court vacancies in 2021

So far in 2021, there have been two new state supreme court vacancies in two of the 29 states where replacement justices are appointed instead of elected. The vacancies have both been caused by retirements. 

In Colorado, Chief Justice Nathan Coats retired on January 1, when he reached the mandatory retirement age of 72. Colorado Governor Jared Polis (D) appointed Maria Berkenkotter to the Colorado Supreme Court on November 20, 2020. Berkenkotter is Polis’ first nominee to the seven-member supreme court. In South Dakota, Chief Justice David Gilbertson retired in early January, when he reached the mandatory retirement age of 70 years old. South Dakota Gov. Kristi Noem (R) appointed Scott P. Myren to the South Dakota Supreme Court on October 28, 2020.

Currently, Maine is the only appointment state which had a vacancy in 2020 which has yet to be filled.

Three more states will see vacancies from retirement on their state supreme courts in 2021:

• Joel Bolger, June 30, 2021, Alaska

• Leslie Stein, June 4, 2021, New York

• Eugene Fahey, December 31, 2021, New York

In Alaska, the vacancy will be filled by Republican Governor Mike Dunleavy. Both of the vacancies on the New York Supreme Court will be filled by Democratic Governor Andrew Cuomo.

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Differing deference views in FDA abortion pill case

On January 12, the U.S. Supreme Court temporarily restored restrictions implemented by the U.S. Food and Drug Administration (FDA) governing the dispensation of an abortion-inducing pill. A district court had ordered the FDA to loosen restrictions on the drug because, in its view, the COVID-19 pandemic made it more difficult for women to access the pills.

In a concurring opinion attached to the court’s action, Chief Justice Roberts argued that the district court should have given judicial deference to the FDA’s judgment about how to adjust its rules during the pandemic. 

He wrote, “Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.’”

Justice Sotomayor wrote a dissenting opinion, joined by Justice Elena Kagan, agreeing with Roberts that “deference is due to reasoned decisions of public health officials grappling with a deadly pandemic.” However, she wrote that “the record here is bereft of any reasoning [… and there] simply is no reasoned decision here to which this Court can defer.”   

Judicial deference is one of the five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. It refers to when a federal court yields to an agency’s interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. In other words, when a law or regulation is challenged in court, the agency’s interpretation is upheld if it is considered to be reasonable, even if the court would prefer a different interpretation.

To learn more about judicial deference or federal responses to the COVID-19 pandemic, see the links below.

To read the full text of the decision, click here.

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Gov. Sununu (R) to nominate Attorney General Gordon MacDonald to New Hampshire Supreme Court

On January 6, 2021, Gov. Chris Sununu (R) announced that he will renominate Attorney General Gordan MacDonald (R) to the New Hampshire State Supreme Court. 

In New Hampshire, the governor makes nominations to the state supreme court and those nominees are then subject to the approval of the Executive Council. In order for the nominee to become a justice on the court, a majority of the members of the council must vote to approve them. 

Sununu appointed MacDonald to the State Supreme Court in 2019, but the Executive Council rejected MacDonald’s nomination. Councilman Andru Volinksy (D) stated, “Mr. MacDonald has worked for and supported highly partisan politicians with shockingly extreme views.” After MacDonald was rejected, Sununu left the seat vacant throughout 2020. Sununu said, “If someone of Gordon MacDonald’s character and background is going to be dragged through the mud like this, why would I dare do it to anybody else?”

The first time Sununu nominated MacDonald, there were three Democrats and two Republicans on the Executive Council. In November 2020, every seat on the Executive Council was up for election. The balance on the Executive Council is now one Democrat and four Republicans. 

In our Ballotpedia Courts: State Partisanship study, we analyzed the partisan data on each state supreme court in the country. In our study, we found that two justices on the court have Republican affiliations, one justice on the court has Democratic affiliations, and one justice on the court has an indeterminate party affiliation. If the Executive Council approves MacDonald, a majority of the justices on the court will have Republican party affiliations.

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New Hampshire Executive Council election, 2020

Ballotpedia Courts: State Partisanship

Pennsylvania Commonwealth Court rules that 2019 Marsy’s Law ballot measure violated state constitution

Judge gavel on desk

On January 7, 2021, the Pennsylvania Commonwealth Court ruled that a ballot measure for Marsy’s Law, a type of crime victims’ rights amendment, violated the Pennsylvania Constitution. Pennsylvanians voted 74% to 26% in favor of Marsy’s Law at the election on November 5, 2019. Results were never certified, however, according to a court order.

The 3-2 appellate court decision stated that the proposal violated the separate-vote requirement for constitutional amendments. According to the Pennsylvania Constitution, “When two or more amendments shall be submitted they shall be voted upon separately.” Judge Ellen Ceisler (D) wrote the majority’s opinion, which ruled that Marsy’s Law would impact separate rights and provisions of the state constitution.

Judge Patricia McCullough (R), who agreed with the majority’s decision but wrote a separate opinion, stated that the measure contained “laudable and salutary provisions” but “simply embraces too many disparate matters to effectively convey its import to voters within the 75 words mandated by statute.”

Judge Mary Hannah Leavitt (R) dissented, stating that Marsy’s Law created constitutional rights for crime victims without changing existing provisions of the state constitution. Judge Leavitt wrote, “The judgment the court enters today deprives the people of this power on the strength of no more than speculation.”

Jennifer Riley, director of the organization Marsy’s Law for Pennsylvania, responded to the Commonwealth Court’s decision, saying, “We are prepared to continue advocating for victims and to bring an appeal to the Supreme Court to ensure that the votes of Pennsylvanians are counted and that the voices of the victims are protected.”

In Pennsylvania, constitutional amendments need to be passed by the state Legislature during two successive legislative sessions. In 2018, both chambers unanimously passed the amendment. In 2019, the state Senate unanimously passed the amendment, and 190 of 202 state representatives voted for it. Gov. Tom Wolf (D) supported the ballot measure, as did the Pennsylvania District Attorneys Association and U.S. Reps. Fred Keller (R) and Scott Perry (R).

Opponents included the ACLU of Pennsylvania, League of Women Voters of Pennsylvania, and Pennsylvania Association of Criminal Defense Lawyers. Marsy’s Law for Pennsylvania raised $6.65 million from the Marsy’s Law for All Foundation to campaign for the measure.

Marsy’s Law ballot measures faced similar lawsuits in state courts in Kentucky and Montana. The amendment was struck down in Montana for violating the state’s separate-vote requirement on constitutional amendments. In Kentucky, after it was struck down for reasons related to ballot language, the state Legislature placed it on the ballot again in 2020. The 2020 version, which was approved, included the full text of the measure on the ballot.

As of January 2021, 12 states had Marsy’s Law amendments. Voters in two additional states—Pennsylvania and Montana—voted in favor of Marsy’s Law amendments, but they were overturned or blocked. Henry Nicholas, the co-founder of Broadcom Corp., started campaigning for Marsy’s Law to increase the rights and privileges of victims in state constitutions. Marsy’s Law is named after Nicholas’ sister, Marsy Nicholas, who was murdered in 1983.

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Texas Gov. Abbott appoints Rebeca Huddle to replace Justice Paul Green on state supreme court

On October 15, 2020, Gov. Greg Abbott (R) appointed Rebeca Huddle to replace Justice Paul Green on the Texas Supreme Court.

Justice Green announced his retirement from the Texas Supreme Court in August 2020.

Huddle is a Republican who served as a justice on Texas’ First District Court of Appeals. She graduated from Stanford University and the University of Texas School of Law. Upon her appointment, Huddle said, “I understand the magnitude of the trust and responsibility that the governor is placing in me and in every justice of the Supreme Court, and I’ll work hard every day to earn that trust anew.”

Huddle will face a retention election in 2022 to keep her seat on the court.

Abbott said, “Rebeca is a first-generation American. Her mother emigrated from Juarez to Texas and later became a naturalized citizen. Rebeca’s father passed away when she was just 5 years old … Although her mother never graduated from high school, she worked tirelessly as a seamstress in a factory in El Paso to provide for Rebeca and her four siblings.”

Abbott has appointed three others to fill vacancies on the all-Republican appointed Texas Supreme Court since taking office in 2015. He appointed Justices Jane Bland, Brett Busby and Jimmy Blacklock.

Four justices on the Texas Supreme Court face re-election in 2020: Jeffrey S. Boyd, Brett Busby, Nathan Hecht, Jane Bland.

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