The U.S. Senate confirmed Scott Hardy to the U.S. District Court for the Western District of Pennsylvania by a vote of 65-30 on July 27. The Western District of Pennsylvania is one of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.
After Hardy receives his judicial commission and takes his judicial oath, the court will have one vacancy, seven Republican-appointed judges, and two Democrat-appointed judges. Hardy will join seven other judges appointed by President Trump.
Hardy was born in Pittsburgh, Pennsylvania, in 1971. He earned his B.A., magna cum laude, from Allegheny College in 1993 and his J.D. from Notre Dame Law School in 1996. He was a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in Pittsburgh from 2010 to 2020.
The U.S. Senate has confirmed 201 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 144 district court judges, and two U.S. Court of International Trade judges—since January 2017.
The U.S. Supreme Court has unofficially ended its 2019-2020 term and is now in recess until the start of the 2020-2021 term on October 5. Delays from the coronavirus pandemic caused the court to release opinions until July 9, the first time the court had issued opinions into July since 1996. The July 9 date set a record for the latest date the court has issued regular opinions since 1960. Before this year, the latest date for issuing opinions in that span was July 7, 1986.
The court issued 53 signed opinions, in which the authorship is indicated, this term. Justices Roberts and Gorsuch wrote the most opinions with seven each. Justices Thomas, Breyer, and Sotomayor wrote the least, with five opinions each. Compared to the previous term, Justices Roberts and Ginsburg wrote the same number of opinions. Justices Thomas, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh all wrote more opinions last term than this term. Several of this term’s cases were postponed to the upcoming term due to the coronavirus pandemic.
The court issued 13 5-4 or 5-3 decisions, 21% of the total opinions released this term. Those decisions were made by four different configurations of justices. Across these decisions, 69% had a majority made up of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. The rest had a majority made up of Justices Ginsburg, Breyer, Sotomayor, and Kagan with one conservative justice.
Since the 2005-2006 term, the court released the highest percentage of 5-4 opinions in 2006-2007 at 33%. It issued the least amount of 5-4 opinions in 2015-2016 at 5%.
SCOTUS issued opinions in 69 cases this term. It reversed 46 lower court decisions (66.7%) and affirmed 23. This term’s reversal rate was 3.4 percentage points lower than the average rate of reversal since 2007 (70.1%). The SCOTUS reversal rates are based on SCOTUSblog’s Circuit Scorecard, which treats opinions released in certain consolidated cases as separate decisions to most accurately reflect the court’s impact on lower court rulings.
Between the 2007 and 2019 terms, SCOTUS released opinions in 993 cases. Of those, it reversed a lower court decision 696 times (70.1%), while affirming a lower court decision 289 times (29%). Eight of the 993 cases were original jurisdiction, meaning the U.S. Supreme Court was the only court to hear that case. These cases cannot affirm or reverse a lower court opinion.
Since the 2007 term, SCOTUS has decided more cases originating from the 9th Circuit (191) than from any other circuit. The next-most has been the 2nd Circuit, which had 73 decisions. During that span, SCOTUS overturned a greater number of cases originating from the 9th Circuit (149, or 78%), but it overturned a higher percentage of cases originating in the 6th Circuit (79.7%, or 55 of 69 cases).
On July 9, the Supreme Court of the United States (SCOTUS) issued its final orders from its October 2019-2020 Term, granting review in six cases for a total of four hours of oral argument during its upcoming October Term for 2020-2021. The cases have not yet been scheduled for argument.
Collins v. Mnuchin (Consolidated with Mnuchin v. Collins)
• The case Collins v. Mnuchin originated from the U.S. Court of Appeals for the 5th Circuit and was consolidated with the case Mnuchin v. Collins. The consolidated cases concern the extent of the president’s appointment and removal powers.
Facebook v. Duguid
• The case Facebook v. Duguid originated from the U.S. Court of Appeals for the 9th Circuit and concerns the definition of an automated telephone dialing system in the Telephone Consumer Protection Act.
AMG Capital Management, LLC v. Federal Trade Commission (Consolidated with Federal Trade Commission v. Credit Bureau Center, LLC)
• The case AMG Capital Management, LLC v. Federal Trade Commission originated from the U.S. Court of Appeals for the 9th Circuit and was consolidated with the case Federal Trade Commission v. Credit Bureau Center, LLC, which originated from the U.S. Court of Appeals for the 7th Circuit. The consolidated cases concern the Federal Trade Commission Act and whether it authorizes the Federal Trade Commission to demand restitution from parties who violate the Act.
Uzuegbunam v. Preczewski
• The case Uzuegbunam v. Preczewski originated from the U.S. Court of Appeals for the 11th Circuit and concerns mootness of nominal damages claims following a government’s post-filing policy change.
The Supreme Court will begin hearing cases for the term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.
As of July 13, 2020, the court had agreed to hear 31 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.
With a 7-2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the U.S. Supreme Court upheld religious and moral exemptions to Obamacare’s contraception mandate.
The majority opinion held that federal agencies followed proper procedures under the Administrative Procedure Act (APA) to create the exemptions, and that the Little Sisters of the Poor had standing to participate in the case. Justice Clarence Thomas delivered the opinion of the court, joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
In his opinion, Thomas wrote, “After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate. We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects.”
Justice Alito wrote a concurring opinion, joined by Justice Gorsuch, arguing that the court should have also ruled that the Religious Freedom Restoration Act (RFRA) required the agencies to create the religious exemption to the contraception mandate. Because the court did not resolve that question, Alito wrote that the Little Sisters of the Poor will have a longer legal battle.
Justice Elena Kagan wrote a concurring opinion, joined by Justice Stephen Breyer, arguing that Obamacare was ambiguous with respect to the agencies authority to exempt employers from the contraception mandate, so the court should have deferred to the agencies’ interpretation of the law under the _Chevron_ doctrine. _Chevron_ says that courts must uphold reasonable interpretations of ambiguous laws offered by agencies empowered to administer those laws.
Justice Ruth Bader Ginsburg wrote a dissenting opinion, joined by Justice Sonia Sotomayor, arguing that “the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the _nth_ degree.” She wrote, “this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets” even though, for Ginsburg, the Free Exercise Clause of the U.S. Constitution and the Religious Freedom Restoration Act did not require that outcome.
The court sent the case back to the Third Circuit to reconsider its decision to rule against the Little Sisters of the Poor.
On July 8, the Supreme Court of the United States (SCOTUS) issued an opinion in the case Our Lady of Guadalupe School v. Morrissey-Berru, which was consolidated with the case St. James v. Biel. Both cases originated from the U.S. Court of Appeals for the 9th Circuit and concerned employment discrimination claims filed against religious institutions. The case was argued during the court’s October Term for 2019-2020 on May 11, 2020.
The case: In both cases, two teachers at Catholic schools were not offered contract renewals. Both teachers filed discrimination claims in federal district court against their former employers. The court ruled that both schools were protected religious organizations exempted from anti-discrimination employment laws. Both teachers appealed to the 9th Circuit, which reversed the district court’s ruling in one case and denied petition for rehearing and for rehearing en banc in the second case.
The issue: Whether the religion clauses prevent civil courts from adjudicating employment discrimination claims brought by an employee against her religious employer, where the employee carried out important religious functions.
The outcome: The court reversed and remanded the decision of the 9th Circuit in a 7-2 ruling, holding that the First Amendment’s religion clauses foreclose the adjudication of Morrissey-Berru’s and Biel’s employment discrimination claims. Justice Samuel Alito delivered the opinion of the court. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justice Ruth Bader Ginsburg.
As of July 8, 2020, the court had issued decisions in 58 cases this term. Between 2007 and 2018, SCOTUS released opinions in 850 cases, averaging 77 cases per year.
In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies from June 2, 2020, to July 1, 2020. Ballotpedia publishes the federal judicial vacancy count at the start of each month.
• Vacancies: There have been two new judicial vacancies since the May 2020 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 two new nominations since the May 2020 report.
• Confirmations: There have been three new confirmations since the May 2020 report.
There were 73 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.4.
• The nine-member U.S. Supreme Court does not have any vacancies.
• None of the 179 U.S. Appeals Court positions are vacant.
• 71 (10.5%) of the 673 U.S. District Court positions are vacant.
• Two (22.2%) of the nine U.S. Court of International Trade positions are vacant.
A vacancy occurs when a judge resigns, retires, takes senior status, or passes away. Article III judges, who serve on courts authorized by Article III of the Constitution, are appointed for life terms.
Two judges left active status, creating Article III life-term judicial vacancies. As Article III judicial positions, these 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.
1. Judge Justin Walker was elevated to the U.S. Court of Appeals for the District of Columbia Circuit.
2. Judge Brian Cogan assumed senior status on the U.S. District Court for the Eastern District of New York.
President Donald Trump (R) has announced two new nominations since the May 2020 report.
1. James P. Arguelles, to the U.S. District Court for the Eastern District of California.
2. Taylor McNeel, to the U.S. District Court for the Southern District of Mississippi.
Since taking office in January 2017, President Trump has nominated 262 individuals to Article III positions.
Since June 2, 2020, the United States Senate has confirmed three of President Trump’s nominees to Article III seats.
1. Drew Tipton, confirmed to the United States District Court for the Southern District of Texas.
2. Justin Walker, confirmed to the United States Court of Appeals for the District of Columbia Circuit.
3. Cory Wilson, confirmed to the United States Court of Appeals for the 5th Circuit.
As of July 2, 2020, 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—since January 2017.
Donald Trump has appointed and the Senate has confirmed 200 Article III federal judges through July 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D). The Senate had confirmed 247 of Carter’s appointees at this point in his term.
The average number of federal judges appointed by a president through July 1 of their fourth year in office is 185.
The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.
The median number of United States 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 30% of the total 179 judgeships across the courts of appeal.
The median number of United States District Court appointees is 143. Carter appointed the most with 190, and Reagan appointed the fewest with 117. Trump has appointed 143 district court judges so far. Those appointments make up 21% of the 677 judgeships across the district courts.
Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the: Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.
The U.S. Supreme Court issued two opinions in five cases. In Bostock v. Clayton County, Georgia (consolidated with Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC), SCOTUS ruled “an employer who fires an individual merely for being gay or transgender violates” Title VII of the Civil Rights Act of 1964. Title VII outlawed discrimination on the basis of race, color, religion, sex, or national origin. The three cases questioned whether sexual orientation and gender identity were included in Title VII’s prohibition of discrimination “because of … sex.”
In Bostock v. Clayton County, Georgia, the 11th Circuit held that sexual orientation was not a form of sex discrimination under Title VII. In Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC, the 2nd Circuit and 6th Circuit, respectively, held that sexual orientation was a form of sex discrimination under Title VII.
In a 6-3 ruling, the court reversed the 11th Circuit and affirmed the 2nd and 6th Circuits. Writing for the majority, Justice Neil Gorsuch argued, “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Samuel Alito filed a dissenting opinion, joined by Justice Clarence Thomas. Justice Brett Kavanaugh also filed a dissenting opinion.
United States Forest Service v. Cowpasture River Preservation Association (consolidated with Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association) concerned whether the U.S. Forest Service had the authority to grant rights-of-way through lands traversed by the Appalachian Trail within national forests. In a 7-2 opinion, the court reversed the 4th Circuit’s judgment, holding the Forest Service does have authority to grant rights-of-way. Justice Clarence Thomas wrote the majority opinion.
In his opinion, Justice Thomas wrote, “We conclude that the lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be ‘Federal lands’ under the [Mineral] Leasing Act.” Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented.
On June 1, 2020, the Supreme Court of the United States (“SCOTUS”) issued rulings in five cases argued during its October 2019-2020 term:
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC (Consolidated with Aurelius Investment v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, United States v. Aurelius Investment, and UTIER v. Financial Oversight and Management Board for Puerto Rico)
Banister v. Davis
Thole v. U.S. Bank
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC
Nasrallah v. Barr
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC
Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment LLC came on a writ of certiorari to the U.S. Court of Appeals for the 1st Circuit and involved how the Appointments Clause in Article II of the U.S. Constitution applies to U.S. territories. The case was argued before the Supreme Court of the United States on October 15, 2019.
The case: In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act. The act created the Financial Oversight and Management Board and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rico government. After the board began proceedings in 2017, Aurelius Investment LLC, (“Aurelius”) and the Unión de Trabajadores de la Industria Eléctrica y Riego (“UTIER”) challenged the board’s authority in federal district court, arguing the board members’ appointment violated the Appointments Clause of the U.S. Constitution. The district court ruled against Aurelius and UTIER. On appeal, the 1st Circuit Court of Appeals reversed the district court in part, holding the board members “must be, and were not, appointed in compliance with the Appointments Clause.”
The issue: Whether the Appointments Clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico.
The outcome: The court ruled 9-0 that the Appointments Clause governed the appointment of members of the FOMB but that the method of appointment used did not violate its requirements.
Banister v. Davis
Banister v. Davis came on a writ of certiorari to the U.S. Court of Appeals for the 5th Circuit and concerned timely habeas petitions. The case was argued before the Supreme Court on December 4, 2019.
The case: In 2004, a jury convicted Gregory Banister of aggravated assault with a deadly weapon. After several appeals, Banister filed a petition under Rule 59(e) of the Federal Rule of Civil Procedure, asking the Northern District of Texas to revisit an earlier judgment. The district court denied the petition. On appeal, the 5th Circuit Court of Appeals also denied Banister’s petition for a certificate of appealability on the grounds the petition was untimely based on Gonzalez v. Crosby. Banister appealed to the U.S. Supreme Court, arguing there was a circuit split on extending the Gonzalez decision to include Rule 59(e) motions.
The issue: Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).
The outcome: The court reversed and remanded the judgment of the 5th Circuit in a 7-2 vote, holding that because a Rule 59(e) motion to alter or amend a habeas court’s judgment is not a second or successive habeas petition under 28 U.S.C. §2244(b), Banister’s appeal was timely.
Thole v. U.S. Bank
Thole v. U.S. Bank was a case concerning the Employee Retirement Income Security Act of 1974 (ERISA) and whether the plaintiffs had standing. It came on a writ of certiorari to the U.S. Court of Appeals for the 8th Circuit and was argued before SCOTUS on January 13, 2020.
The case: James Thole and Sherry Smith sued U.S. Bank, N.A. over U.S. Bank’s management of a defined benefit pension plan. Thole and Smith alleged the bank violated the Employee Retirement Income Security Act of 1974 (ERISA) and engaged in prohibited transactions, causing the plan to become underfunded. U.S. Bank sought to dismiss the case, arguing the plaintiffs did not have the legal right to sue and the statute of limitations had run out on the ERISA claims. The district court dismissed in part and granted in part U.S. Bank’s motion. In 2014, the plan became overfunded. The district court dismissed the case as moot. Thole and Smith appealed to the 8th Circuit, which affirmed the district court’s ruling. The plaintiffs then petitioned the U.S. Supreme Court to review the case, arguing the 8th Circuit’s ruling conflicted with other circuit court decisions.
May an ERISA plan participant or beneficiary seek injunctive relief against fiduciary misconduct under 29 U.S.C. 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof?
May an ERISA plan participant or beneficiary seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof?
Whether petitioners have demonstrated Article III standing.
The outcome: The court affirmed the 8th Circuit’s decision in a 5-4 ruling, holding the plaintiffs did not have standing and would still receive the same amount of monthly benefits regardless of the case’s outcome.
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC
GE Energy Power Conversion France SAS v. Outokumpu Stainless USA LLC was a case relating to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). It came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on January 21, 2020.
The case: Outokumpu Stainless USA LLC (“Outokumpu”) contracted with Fives St. Corp. (“Fives”) to provide equipment for its steel plant in Alabama. Fives subcontracted with GE Energy Power Conversion France SAS (“GE Energy”), a foreign corporation, to supply the equipment. The contracts between Outokumpu and Fives and between Fives and GE Energy contained arbitration clauses. The equipment was installed between 2011 and 2012 but failed by 2015. Outokumpu sued GE Energy in Alabama state court. The case was moved to federal district court, which dismissed the case and compelled Outokumpu to undertake arbitration proceedings. On appeal, the 11th Circuit Court of Appeals reversed the district court’s decision to compel arbitration. GE Energy appealed to the U.S. Supreme Court for review, arguing the 11th Circuit’s decision underlined a 2-to-2 circuit court split.
The issue: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
The outcome: The court reversed the decision of the 11th Circuit in a unanimous ruling, holding the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with doctrines in state law that allow the enforcement of arbitration agreements by non-signatories to those agreements.
Nasrallah v. Barr
Nasrallah v. Barr was a case concerning judicial review of a noncitizen’s factual challenges to an order denying relief under the international Convention Against Torture. The case came on a writ of certiorari to the U.S. Court of Appeals for the 11th Circuit and was argued before the Supreme Court on March 2, 2020.
The case: Nidal Khalid Nasrallah, a citizen and native of Lebanon, pleaded guilty to two counts of receiving stolen property in interstate commerce in the United States. An immigration judge determined that one of Nasrallah’s convictions involved moral turpitude and constituted a particularly serious crime, but granted Nasrallah protection from removal from the country under the Convention Against Torture. The case was appealed to the Board of Immigration Appeals, which affirmed in part and reversed in part the immigration judge’s decision and ordered Nasrallah’s removal. Nasrallah petitioned the 11th Circuit for review. The 11th Circuit denied in part and dismissed in part the petition.
The issue: “Whether, notwithstanding Section 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.”
The outcome: The court reversed the 11th Circuit’s judgment in a 7-2 vote, holding that U.S. Code Sections 1252(a)(2)(C) and (D) do not prevent judicial review of a noncitizen’s factual challenges to a denial of relief order under the international Convention Against Torture.
As of June 1, 2020, the court had issued decisions in 38 cases this term. Between 2007 and 2018, SCOTUS released opinions in 924 cases, averaging between 70 and 90 cases per year. The court agreed to hear 74 cases during its 2019-2020 term.
On June 1, a unanimous U.S. Supreme Court ruled that the Appointments Clause of the U.S. Constitution does not require members of the Puerto Rican Financial Oversight and Management Board (FOMB) to face confirmation by the U.S. Senate.
The Appointments Clause gives the president authority to appoint officers of the United States, subject to confirmation by the U.S. Senate. These officers include ambassadors, heads of Cabinet-level departments, and federal judges. The U.S. Supreme Court ruled that because FOMB members have primarily local powers and duties that the Appointments Clause does not restrict how they are selected.
Congress created the FOMB in 2016 and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rican government. The seven-member board is made up of one member chosen at the president’s discretion and six other members selected by the president from a list written by members of Congress.
Aurelius Investment LLC and the Unión de Trabajadores de la Industria Eléctrica y Riego challenged the FOMB’s authority, arguing that board members’ appointments violated the Appointments Clause. Aurelius and the union claimed that the board members are “Officers of the United States” who must be nominated by the president and confirmed by the Senate. The board argued that because its activities are primarily local in nature its members do not qualify as “Officers of the United States.” The U.S. Supreme Court ruled in favor of the board and sent the case to the U.S. Court of Appeals for the First Circuit for further proceedings.
Justice Clarence Thomas wrote a concurring opinion arguing that the court made the right decision for the wrong reasons. He would have relied on the original public meaning of the phrase _officers of the United States_ to resolve the case.
Justice Sonia Sotomayor wrote a separate concurring opinion arguing that “territorial status should not be wielded as a talismanic opt out of prior congressional commitments or constitutional constraints.” She stated that because the parties in the case did not address the implications of Puerto Rican home rule on the Appointments Clause she chose to concur in the judgment of the court.