Alaska and Arizona have new state supreme court justices after appointments from their respective governors. Alaska Gov. Mike Dunleavy (R) appointed Jennifer Stuart Henderson to the Alaska Supreme Court on July 7, and Arizona Gov. Doug Ducey (R) appointed Kathryn Hackett King to the Arizona Supreme Court on July 8.
Alaska
A seat on the Alaska Supreme Court became vacant when former Chief Justice Joel Bolger retired on June 30, 2021. Gov. Dunleavy selected Jennifer Stuart Henderson for the seat from a list of three finalists forwarded by the Alaska Judicial Council (AJC). Henderson is Gov. Dunleavy’s second nominee to the five-member supreme court.
On July 1, Dunleavy asked the AJC to reconsider its list of nominees and put forward a new slate to fill the vacancy. However, under the council’s bylaws, it may not reconsider nominees that have been sent to the governor except in specific circumstances. Ultimately, Dunleavy appointed Henderson from the original slate of three names put forward by the AJC.
Prior to her appointment to the supreme court, Henderson served as a judge on the Alaska superior court. She was appointed to the superior court in 2012 by former Alaska Gov. Sean Parnell (R). Her career experience also includes working as an assistant district attorney in Anchorage and as an attorney in private practice with the law firm of Farley & Graves. After law school, she served as a clerk for former Alaska Supreme Court Justice Warren Matthews. Henderson earned a J.D. from Yale Law School.
Arizona
A seat on the Arizona Supreme Court became vacant when former Justice Andrew W. Gould retired on April 1, 2021. Gov. Ducey selected Kathryn Hackett King for the seat from a slate of nominees put forward by the Arizona Commission on Appellate Court Appointments. King is Gov. Ducey’s sixth nominee to the seven-member supreme court.
Before her appointment to the supreme court, King was a partner at the law firm of BurnsBarton PLC. She also served as a member of the Arizona Board of Regents. From 2015 to 2017, King served as the deputy general counsel to Gov. Ducey. She previously practiced law at Snell & Wilmer LLP. After graduation from law school, King clerked for former Arizona Supreme Court Justice Michael D. Ryan from 2007 to 2008. She is the fifth woman in Arizona history to serve on the state supreme court.
King earned a B.A. in political science from Duke University and a J.D. from the University of Arizona James E. Rogers College of Law.
In 2021, there have been 14 supreme court vacancies in 12 of the 29 states where replacement justices are appointed instead of elected. To date, nine of those 14 vacancies have been filled.
The Supreme Court of the United States (SCOTUS) issued rulings in two cases on July 1. One case—Americans for Prosperity v. Bonta—was argued during the court’s April sitting, while Brnovich v. Democratic National Committee was argued during the court’s March sitting.
In Americans for Prosperity v. Bonta, the Thomas More Law Center and Americans for Prosperity challenged a California policy requirement that tax-exempt §501(c)(3) charitable organizations must disclose the names and addresses of major donors. The groups argued that the policy violated the First Amendment to the U.S. Constitution. On appeal, the U.S. Court of Appeals for the 9th Circuit had ruled in favor of the state. However, in a 6-3 opinion, the U.S. Supreme Court reversed that ruling and remanded the case for further proceedings, holding that the district court was correct in entering judgment in favor of the petitioners and permanently enjoining the California Attorney General from collecting their Schedule B forms. SCOTUS ruled that the Ninth Circuit erred when it vacated those injunctions and directed the entry of judgment for the attorney general. Chief Justice John Roberts delivered the majority opinion of the court. Justice Clarence Thomas filed a concurring opinion. Justice Samuel Alito filed a concurring opinion, joined by Justice Neil Gorsuch. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justices Stephen Breyer and Elena Kagan..
With a 6-3 opinion in Brnovich v. Democratic National Committee, the U.S. Supreme Court reversed the U.S. Court of Appeals for the 9th Circuit’s ruling and remanded the case for further proceedings, holding that Arizona’s out-of-precinct policy and HB 2023 did not violate §2 of the Voting Rights Act, and that HB 2023 was not enacted with a racially discriminatory purpose. Justice Samuel Alito delivered the majority opinion of the court. Justice Neil Gorsuch filed a concurring opinion, joined by Justice Clarence Thomas. Justice Elena Kagan filed a dissenting opinion, joined by Justices Stephen Breyer and Sonia Sotomayor.
The court issued 67 opinions this term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument.
In this month’s federal judicial vacancy count, Ballotpedia tracked nominations, confirmations, and vacancies to all United States Article III federal courts from June 1 to July 1. Ballotpedia publishes the federal judicial vacancy count at the start of each month.
HIGHLIGHTS
Vacancies: There have been three new judicial vacancies since the May 2021 report. There are 77 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, 82 of 890 active federal judicial positions are vacant.
Nominations: There were 11 new nominations since the May 2021 report.
Confirmations: There were seven confirmations since the May 2021 report.
New vacancies
There are 77 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.9%.
The nine-member U.S. Supreme Court does not have any vacancies.
Seven (3.9%) of the 179 U.S. Appeals Court positions are vacant.
68 (10.1%) 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.
*District court count does not include territorial courts.
Three 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 John Dowdell assumed senior status on the U.S. District Court for the Northern District of Oklahoma.
Judge Lydia Kay Griggsby left her seat on the U.S. Court of Federal Claims when she was elevated to the U.S. District Court for the District of Maryland.
Judge Ketanji Brown Jackson left her seat on the U.S. District Court for the District of Columbia when she was elevated to the U.S. Court of Appeals for the District of Columbia Circuit.
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 July 1, 2021.
New nominations
President Joe Biden (D) has announced 11 new nominations since the May 2021 report.
Toby Heytens, to the United States Court of Appeals for the 4th Circuit
Myrna Pérez, to the United States Court of Appeals for the 2nd Circuit
Jennifer Sung, to the United States Court of Appeals for the 9th Circuit
Jane Beckering, to the United States District Court for the Western District of Michigan
Jia Cobb, to the United States District Court for the District of Columbia
Shalina Kumar, to the United States District Court for the Eastern District of Michigan
Sarah A.L. Merriam, to the United States District Court for the District of Connecticut
Michael Nachmanoff, to the United States District Court for the Eastern District of Virginia
Sarala Nagala, to the United States District Court for the District of Connecticut
Patricia Tolliver Giles, to the United States District Court for the Eastern District of Virginia
Omar A. Williams, to the United States District Court for the District of Connecticut
New confirmations
As of July 1, 2021, the Senate has confirmed seven of President Biden’s judicial nominees—two appeals court judges and five district court judges—since January 2021.
Ketanji Brown Jackson, to the United States Court of Appeals for the District of Columbia Circuit
Candace Jackson-Akiwumi, to the United States Court of Appeals for the 7th Circuit
Deborah Boardman, to the United States District Court for the District of Maryland
Lydia Kay Griggsby, to the United States District Court for the District of Maryland
Julien Xavier Neals, to the United States District Court for the District of New Jersey
Zahid Quraishi, to the United States District Court for the District of New Jersey
Regina Rodriguez, to the United States District Court for the District of Colorado
President Joe Biden (D) announced his intent to nominate his fifth slate of judicial nominees on June 30, which included six individuals to Article III judgeships with lifetime terms:
• Toby Heytens, to the United States Court of Appeals for the 4th Circuit
• Jennifer Sung, to the United States Court of Appeals for the 9th Circuit
• Jane Beckering, to the United States District Court for the Western District of Michigan
• Patricia Tolliver Giles, to the United States District Court for the Eastern District of Virginia
• Shalina Kumar, to the United States District Court for the Eastern District of Michigan
• Michael Nachmanoff, to the United States District Court for the Eastern District of Virginia
To date, Biden has nominated 30 individuals to federal judgeships. Seven of the nominees have been confirmed. There were 82 Article III vacancies in the federal judiciary as of July 1.
As of his inauguration in January 2021, Biden inherited 46 Article III vacancies: two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy on the U.S. Court of International Trade. Biden announced his first federal judicial nominees on March 30.
Biden’s announcement on June 30 also included two nominees to Article I courts:
• Armando Bonilla, to the United States Court of Federal Claims
• Carolyn Lerner, to the United States Court of Federal Claims
Article I courts are federal courts organized under Article I of the United States Constitution. They are created by Congress and have differing levels of independence from the executive and legislative branches. Examples of Article I courts include the U.S. Tax Court, the U.S. Court of Appeals for the Armed Forces, the Court of Military Commission Review, the U.S. Court of Appeals for Veterans Claims, the U.S. Court of Federal Claims, and the U.S. Bankruptcy Courts.
Biden also announced his intent to nominate one individual to the local D.C. superior court:
• Sean Staples, to the Superior Court of the District of Columbia
Washington, D.C., has two local courts: the superior court—a trial court of general jurisdiction—and a court of appeals. Justices on these courts are nominated by the U.S. president after recommendation from the District of Columbia Judicial Nomination Commission; they then face confirmation by the U.S. Senate. D.C. judges are appointed to 15-year renewable terms.
The Supreme Court of the United States (SCOTUS) issued opinions in three cases on June 29. To date, the court has issued 64 opinions for its 2020-2021 term. Two cases were decided in one consolidated opinion and nine cases were decided without argument. Two cases argued during the term have yet to be decided.
Johnson v. Guzman Chavez (formerly Albence v. Guzman Chavez) concerned the Immigration and Nationality Act of 1952 and the statutory authority under which the government detains immigrants seeking to overturn deportation after a reinstated removal order. The case originated from the U.S. Court of Appeals for the 4th Circuit.
In a 6-3 opinion, the court reversed the decision of the 4th Circuit, holding that 8 U.S.C. § 1231 governs the detention of aliens subject to reinstated orders of removal. Justice Samuel Alito delivered the opinion of the court. Justice Stephen Breyer filed a dissent joined by Justices Sonia Sotomayor and Elena Kagan.
Minerva Surgical Inc. v. Hologic Inc. concerned patent infringement claims and the doctrine of assignor estoppel. The case came from the U.S. Court of Appeals for the Federal Circuit.
In a 5-4 opinion, the court vacated the Federal Circuit’s judgement and remanded the case for further proceedings. It held that the Federal Circuit was right to uphold assignor estoppel, but assignor estoppel applies only when the assignor’s claim of invalidity contradicts explicit or implicit representations they made in assigning the patent. Justice Kagan wrote the majority opinion of the court. Justices Alito and Amy Coney Barrett filed dissenting opinions. Barrett’s dissent was joined by Justices Clarence Thomas and Neil Gorsuch.
PennEast Pipeline Co. v. New Jersey concerned jurisdictional requirements of eminent domain under the Natural Gas Act. The case originated from the U.S. Court of Appeals for the 3rd Circuit.
In a 5-4 opinion, the court reversed the 3rd Circuit’s decision and remanded the case for further proceedings, holding that Section 717f(h) authorizes FERC certificate holders to condemn all necessary rights-of-way, whether owned by private parties or by states. Chief Justice John Roberts delivered the opinion of the court. Justice Gorsuch filed a dissenting opinion, joined by Justice Thomas. Justice Barrett filed a dissenting opinion, joined by Justices Thomas, Kagan, and Gorsuch
President Joe Biden (D) nominated six individuals to Article III judgeships with lifetime terms on June 15:
• Myrna Pérez, to the United States Court of Appeals for the 2nd Circuit
• Jia Cobb, to the United States District Court for the District of Columbia
• Sarah A.L. Merriam, to the United States District Court for the District of Connecticut
• Sarala Nagala, to the United States District Court for the District of Connecticut
• Florence Pan, to the United States District Court for the District of Columbia
• Omar A. Williams, to the United States District Court for the District of Connecticut
To date, Biden has nominated 24 individuals to federal judgeships. Five of the nominees have been confirmed. There were 81 Article III vacancies in the federal judiciary as of June 1.
As of his inauguration in January 2021, Biden inherited 46 Article III vacancies: two vacancies in the U.S. courts of appeal, 43 vacancies in the U.S. district courts, and one vacancy on the U.S. Court of International Trade. Biden announced his first federal judicial nominees on March 30.
President Biden also nominated two individuals to Washington, D.C., local courts on June 15:
• Tovah Calderon, to the District of Columbia Court of Appeals
• Kenia Seoane Lopez, to the Superior Court of the District of Columbia
Washington, D.C., has two local courts: the superior court—a trial court of general jurisdiction—and a court of appeals. Justices on these courts are nominated by the U.S. president after recommendation from the District of Columbia Judicial Nomination Commission. They then face confirmation by the U.S. Senate. D.C. judges are appointed to 15-year renewable terms.
The Supreme Court of the United States (SCOTUS) issued an opinion in one case, City of San Antonio, Texas v. Hotels.com, L.P. on May 27. The case involved Rule 39 of the Federal Rules for Appellate Procedure. The case was argued before SCOTUS during the April argument sitting last month.
A class of 173 Texas municipalities (“San Antonio”) sued several online travel companies (“OTCs”) over the calculation of hotel occupancy taxes and was awarded a multi-million dollar judgment in federal district court. On appeal, the U.S. Court of Appeals for the 5th Circuit ruled in favor of the OTCs, holding that they had not underpaid their taxes. The OTCs filed a bill of costs in the district court. San Antonio objected and asked the district court to deny or reduce the amount owed. The district court ruled that it was not permitted to alter the appellate cost awards under Rule 39. The municipalities appealed to the 5th Circuit. The 5th Circuit affirmed the district court’s conclusion.
In a unanimous opinion, SCOTUS affirmed the 5th Circuit’s ruling, holding that Rule 39 does not allow a district court to change a court of appeals’ allocation of the costs. Justice Samuel Alito delivered the opinion of the court.
To date, the U.S. Supreme Court has issued 39 opinions during the 2020-2021 term. Seven cases were decided without argument.
Missouri Gov. Mike Parson (R) appointed Robin Ransom to the Missouri Supreme Court on May 24. Ransom was appointed to fill the vacancy left by Laura Denvir Stith, who retired on March 8. Ransom is Parson’s first appointee to the state’s highest court.
Under Missouri law, the Missouri Appellate Judicial Commission selects supreme court judges according to the Missouri Plan. When a seat on the court becomes vacant, the commission submits three names to the governor to determine the replacement. If the governor fails to nominate a replacement from the list, the responsibility goes to the commission.
Ransom has served as a judge of the Missouri Court of Appeals Eastern District since her appointment to that court by Gov. Parson in January 2019. Ransom previously served as a circuit court judge for the 22nd Circuit Court in Missouri. Governor Matt Blunt (R) appointed her to the position on Sept. 11, 2008, and she was retained by voters in 2010 and 2016. Ransom earned a B.A. in political science and sociology from Rutgers University’s Douglass College in 1988 and a J.D. from the University of Missouri-Columbia School of Law in 1991.
In 2021, there have been 11 supreme court vacancies in nine of the 29 states where replacement justices are appointed instead of elected. The vacancies have all been caused by retirements.
The Supreme Court of the United States (SCOTUS) issued opinions in four cases on May 17 that were argued during the 2020-2021 term.
Edwards v. Vannoy
• The case: A non-unanimous jury found Thedrick Edwards guilty of nine 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 and sentence, which 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. In a habeas corpus proceeding, an applicant seeking to file an appeal from a state court is unable to do so without a certificate of appealability.
• The question presented: Whether the U.S. Supreme Court’s decision in Ramos v. Louisiana (2020) applies retroactively to cases on federal collateral review. In Ramos, 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.
• The outcome: In a 6-3 opinion, SCOTUS upheld the 5th Circuit’s ruling, holding that the jury-unanimity rule does not apply retroactively on federal collateral review. Justice Brett Kavanaugh delivered the majority opinion of the court. Justice Elena Kagan filed a dissenting opinion, in which Justices Stephen Breyer and Sonia Sotomayor joined.
BP P.L.C. v. Mayor and City Council of Baltimore
• The case: The mayor and city council of Baltimore, Maryland (“Baltimore”) filed a claim and sought relief in state court against 26 multinational oil and gas companies, alleging that the companies contributed to and were responsible in part for climate change and that the companies’ actions caused injury to Baltimore. Two of the companies filed to move the case to federal court, claiming that the issues concerned federal law. Baltimore filed a motion to remand the case back to state court. The district court granted Baltimore’s request. The companies appealed to the 4th Circuit and the court affirmed the district court’s ruling.
• The question presented: Whether 28 U.S.C. 1447(d) allows a court of appeals to review any issue included in a district court’s order remanding a case to state court where the removing defendant premised removal in part on the federal officer removal statute, §1442, or the civil rights removal statute, §1443.
• The outcome: In a 7-1 ruling, the court vacated the U.S. Court of Appeals for the 4th Circuit’s ruling and remanded the case for further proceedings consistent with the court’s opinion. The court held that the 4th Circuit erred in its conclusion that it lacked jurisdiction to consider all of the defendants’ grounds for removal under §1447(d). Justice Neil Gorsuch authored the majority opinion and Justice Sotomayor filed a dissenting opinion. Justice Samuel Alito recused himself from the case and took no part in its consideration or decision.
CIC Services v. Internal Revenue Service
• The case: In 2004, Congress authorized the Internal Revenue Service (IRS) to identify and gather details about potential tax shelters. In 2016, the IRS identified certain “micro-captive transactions” as “transactions of interest,” under the umbrella of transactions that must be reported to the IRS. 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 block enforcement. The IRS argued that the court should dismiss the case because it lacked subject matter jurisdiction. The court agreed with the IRS and dismissed the case. On appeal, the U.S. Court of Appeals for the 6th Circuit affirmed the district court’s dismissal.
• The question presented: Whether a suit to block the updated requirements triggered the Anti-Injunction Act (AIA), a federal law barring lawsuits to prevent the assessment or collection of taxes, even though a violation of the notice may result in a tax penalty.
• The outcome: In a unanimous decision, the court reversed the 6th Circuit and remanded the case for further proceedings, holding that the AIA does not apply to lawsuits challenging certain IRS regulations. Justice Elena Kagan authored the majority opinion. Justices Sotomayor and Kavanaugh filed concurring opinions.
Caniglia v. Strom
• The case: In 2015, Edward Caniglia and his wife had an argument at their Rhode Island home. The next day, the police conducted a wellness check on Caniglia and seized firearms and ammunition from the home. Later, Caniglia attempted to retrieve his firearms from the police department several times. His requests were denied. Caniglia filed suit in U.S. district court, alleging violations to the U.S. Constitution and to state law. The firearms were returned to Caniglia. The district court held that the police officers’ seizures were protected under the community caretaking exception to the Fourth Amendment’s warrant requirement, where police officers are permitted to perform community caretaking functions on private premises. On appeal, the U.S. Court of Appeal for the 1st Circuit upheld the district court’s ruling.
• The question presented: Whether the community caretaking exception extends to the home.
• The outcome: In a unanimous opinion, the court vacated the U.S. Court of Appeals for the 1st Circuit’s ruling and remanded the case for further proceedings, holding that neither the ruling nor logic of Cady v. Dombrowski justifies the removal of Caniglia’s firearms from his home by police officers under a community caretaking exception. Justice Clarence Thomas delivered the opinion of the court. Chief Justice John Roberts filed a concurring opinion, in which Justice Breyer joined. Justices Samuel Alito and Kavanaugh also filed concurring opinions.
To date, SCOTUS has issued 36 opinions this term. Seven cases were decided without argument.
The court is scheduled to conference on May 20 and to issue orders on May 24.
Annette Ziegler became chief justice of the Wisconsin Supreme Court on May 1, beginning a two-year term in that role. Ziegler succeeds Patience Roggensack, who had served as chief justice since April 2015.
Ziegler was first elected to the court in 2007. She previously served as a Washington County Circuit Court judge, becoming the first female judge in that county.
Until 2015, the justice with the longest continuous service on the Wisconsin Supreme Court served as the chief justice, unless that justice declined (in which case the role passed to the next senior justice of the court). Voters passed a state constitutional amendment in April of that year that changed the selection method to a vote by current justices.
Chief justices in Wisconsin and 22 other states are selected by chamber vote. Fourteen (14) states select chief justices by appointment, seven by popular vote, and six by seniority.
