Tagjudicial

SCOTUS issues rulings in three cases argued this term

On April 22, the U.S. Supreme Court (SCOTUS) issued opinions in three cases argued during the 2020-2021 term.

Jones v. Mississippi originated from the Mississippi Court of Appeals and was argued before SCOTUS on November 3, 2020. The case concerned sentencing juveniles to life imprisonment without parole.

In a 6-3 vote, the court ruled that the Eighth Amendment to the U.S. Constitution does not require a juvenile to be found as permanently incorrigible before imposing a life sentence without parole. The term incorrigibility refers to when a juvenile does not accept an adult’s authority. The court upheld the Mississippi Court of Appeals’ judgment. Justice Brett Kavanaugh delivered the court’s majority opinion. Justice Sonia Sotomayor dissented and was joined by Justices Stephen Breyer and Elena Kagan.

Carr v. Saul (consolidated with Davis v. Saul) concerns claimants seeking disability benefits under the Social Security Act and whether they must raise any constitutional Appointments Clause challenges relating to the administrative law judges hearing their claims during administrative proceedings before seeking judicial review. The case was argued before SCOTUS on March 3, 2021. 

The U.S. Supreme Court issued a unanimous opinion reversing the 10th Circuit ruling and remanding the case for further proceedings. The court held that Social Security disability claimants are not required to make Appointments Clause challenges at the agency level. Justice Sonia Sotomayor authored the court’s majority opinion. Justice Clarence Thomas filed an opinion concurring in part and concurring in the judgment, in which Justices Neil Gorsuch and Amy Coney Barrett joined. Justice Stephen Breyer filed an opinion concurring in part and concurring in the judgment.

AMG Capital Management, LLC v. Federal Trade Commission was argued before the court on January 13, 2021, and concerned the Federal Trade Commission Act (“The Act”) and whether it authorizes the Federal Trade Commission (FTC) to demand monetary restitution. 

SCOTUS issued a unanimous opinion reversing the 9th Circuit’s judgment and remanding the case for further proceedings. The court concluded that Section 13b of The Act does not authorize the FTC to seek equitable monetary relief like restitution or disgorgement, nor does it authorize a court to award such relief. Justice Stephen Breyer delivered the majority opinion of the court.

As of this writing, the court has issued 30 opinions this term. Six cases were decided without argument.

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Reviewing SCOTUS’ 2020-2021 term so far

The U.S. Supreme Court’s 2020-2021 oral argument calendar is nearing its end, with 12 hours of oral arguments remaining to be heard during its April sitting and one hour of oral argument scheduled for its May sitting. 

From October through March, the court heard a total of 45 hours of oral arguments in 56 cases. Consolidated cases were allotted one hour total for oral arguments. The court’s argument schedule through March included:

  • October sitting
    • Time period: Oct. 5 through Oct. 14
    • Oral arguments heard: 10 hours in 12 cases
  • November sitting
    • Time period: Nov. 2 through Nov. 10
    • Oral arguments heard: 8 hours in 9 cases
  • December sitting
    • Time period: Nov. 30 through Dec. 9
    • Oral arguments heard: 10 hours in 12 cases
  • January sitting:
    • Time period: Jan. 11 through Jan. 19
    • Oral arguments heard: 5 hours in 6 cases
  • February sitting:
    • Time period: Feb. 22 through March 3
    • Oral arguments heard: 6 hours in 10 cases
  • March sitting:
    • Time period: March 22 through March 31
    • Oral arguments heard: 6 hours in 7 cases

During that time, all oral arguments were made remotely via teleconference with live audio streams provided during the argument sessions. The court instituted this practice in accordance with public health guidance in response to COVID-19, and it has announced the practice will continue through its April sitting. 

As of the end of March, the court had issued opinions in 25 cases this term. Five of those cases were decided without argument. The court generally announces the majority of its decisions in mid-June.

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SCOTUS back in session, to hear arguments next week

The Supreme Court of the United States (SCOTUS) is scheduled to begin its April argument sitting the week of April 19. The court will hear arguments via teleconference and will provide audio live streams to the public. The court has not heard arguments in person during the 2020 term. 

SCOTUS will hear arguments in seven cases for a total of six hours of oral argument: 

Yellen v. Confederated Tribes of the Chehalis Reservation (consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation) originated from the U.S. Court of Appeals for the District of Columbia Circuit. The consolidated cases concern Alaska Native corporations and whether they qualify for Coronavirus Aid, Relief, and Economic Security (CARES) Act payments.

Sanchez v. Mayorkasconcerns grants of Temporary Protected Status (TPS) to non-citizens. The case emanated from the U.S. Court of Appeals for the 3rd Circuit.

Greer v. United States concerns Title 18 of the United States Code, prohibiting a convicted felon from possessing a firearm and ammunition, and the Supreme Court’s decision in Rehaif v. United States. Greer originated from the U.S. Court of Appeals for the 11th Circuit.

United States v. Gary concerns plain-error review of a court’s decision and the Supreme Court’s decision in Rehaif v. United States. This case originated from the U.S. Court of Appeals for the 4th Circuit.

City of San Antonio, Texas v. Hotels.com, L.P. originated from the U.S. Court of Appeals for the 5th Circuit and concerns Rule 39 of the Federal Rules for Appellate Procedure and a class-action lawsuit between a class of 173 Texas municipalities and several online travel companies. 

Minerva Surgical Inc. v. Hologic Inc. concerns patent infringement claims and the doctrine of assignor estoppel. The doctrine of assignor estoppel prevents a party that assigns a patent to a new party from later challenging the validity of that patent in U.S. district court. Minerva originated from the U.S. Court of Appeals for the Federal Circuit.

SCOTUS will next hear six hours of oral argument in seven cases from April 26 through April 28. To date, the court has scheduled one case, Terry v. United States, to be argued during the May sitting on May 4. The May sitting is expected to be the final argument session of the term.

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Ballotpedia releases federal judicial vacancy count for March 2021

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

HIGHLIGHTS

Vacancies: There have been five new judicial vacancies since the February 2021 report. There are 70 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, 73 of 890 active federal judicial positions are vacant.

Nominations: There were 10 new nominations since the February 2021 report.

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

New vacancies

There were 70 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 8.1.

• 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.

• 62 (9.2%) of the 673 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.

Five 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 Peter Hall assumed senior status on the U.S. Court of Appeals for the 2nd Circuit.*

• Judge Merrick Garland retired from the U.S. Court of Appeals for the D.C. Circuit.

• Judge Mary Briscoe assumed senior status on the U.S. Court of Appeals for the 10th Circuit.

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

• Judge Anthony J. Battaglia assumed senior status on the U.S. District Court for the Southern District of California.

*Judge Hall’s service ended upon his death seven days after assuming senior status.

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.

File:US Court of Appeals vacancies 040121.png

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 April 1.

File:UUbHy-court-of-appeals-vacancies-biden-inauguration-.png
File:T7YhD-court-of-appeals-vacancies-april-1-2021-.png

New nominations

President Joe Biden (D) has announced 10 new nominations since the February 2021 report.

New confirmations

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

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President Biden has announced 10 nominations for Article III judgeships

President Joe Biden (D) has announced his intent to nominate 10 individuals to Article III courts for lifetime judgeships as of April 1. As of this writing, the official nominations have not yet been submitted to the U.S. Senate. 

For comparison with the previous administration, President Donald Trump (R) made his first Article III judicial nomination by February 1, 2017, when he nominated Neil Gorsuch to the Supreme Court of the United States (SCOTUS). Trump’s first successful appointment–where the nominee was confirmed–occurred by May 1 of his first year, when Gorsuch was confirmed to SCOTUS.

Since 1901, the earliest successful Article III appointment, meaning the nominee was confirmed, was made by President Richard Nixon (R). Nixon appointed a federal district judge by March 1 of his first year in office. Three presidents–Theodore Roosevelt (R), Calvin Coolidge (R), and Gerald Ford (R)–made the fewest with zero judicial appointments during their first year in office.

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.

As of this writing, there were 73 current vacancies in the federal judiciary of 870 total Article III judgeships. Including non-Article III judges from the U.S. Court of Federal Claims and the United States territorial courts, there were 77 vacancies out of 890 active federal judicial positions.

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SCOTUS accepts case, issues opinion

On March 29, the Supreme Court of the United States (SCOTUS) released orders from its conference that was held on Friday, March 26. The court issued an opinion in one case that was not argued before the court and accepted one case to its merits docket for the 2021-2022 term.

The court accepted and issued a per curiam ruling in the case Mays v. Hines, which originated from the U.S. Court of Appeals for the 6th Circuit. Per curiam decisions are unsigned. The court reversed the 6th Circuit’s ruling that granted a new trial to Anthony Hines, who had been convicted of murder and sentenced to the death penalty. Justice Sonia Sotomayor filed a dissenting opinion.

As of March 29, the court had issued opinions in 22 cases for the 2020-2021 team. Five cases were decided without argument.

SCOTUS accepted a new case to be argued during the upcoming October Term for 2021-2022, Cameron v. EMW Women’s Surgical Center, P.S.C. The case originated in the 6th Circuit and concerns whether a state official may intervene in a case to defend a state law that has been invalidated by a federal circuit court and Fourteenth Amendment protections related to a woman’s right to choose whether or not to have an abortion procedure. 

As of March 29, the court had agreed to hear 11 cases during the next term.

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U.S. Supreme Court begins March argument sitting

This week, the Supreme Court of the United States (“SCOTUS”) begins its March sitting. The court will hear cases remotely and provide audio livestreams of oral argument, continuing its safety protocols implemented at the start of the term in accordance with public health guidance related to COVID-19. 

This week, SCOTUS will hear three hours of oral argument in three cases:

• March 22: Cedar Point Nursery v. Hassid came to the court from the U.S. Court of Appeals for the 9th Circuit. The case concerns the regulations governing labor union organizers’ access to employees at worksites.

• March 23: United States v. Cooley originated from the U.S. Court of Appeals for the 9th Circuit and concerns the scope of law enforcement officers’ search-and-seizure authority.

• March 24: Caniglia v. Strom concerns the scope of police officers’ authority for search and seizure and as community caretakers. The case originated from the U.S. Court of Appeals for the 1st Circuit. 

Next week, SCOTUS will hear three hours of oral argument in four cases. After the March sitting, the court is scheduled to hear arguments in 15 cases before the end of the term. To date, the court has heard arguments in 50 cases. 

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New Jersey Governor announces nomination of state supreme court justice

New Jersey Governor Phil Murphy (D) announced on March 15 that he would nominate Rachel Wainer Apter to the New Jersey Supreme Court. She will replace Justice Jaynee LaVecchia, who is retiring on Aug. 31.

Wainer Apter has served as a director with the New Jersey Division on Civil Rights, a counsel to the New Jersey Attorney General, and an attorney with the American Civil Liberties Union. From 2011 to 2012, Wainer Apter was a law clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg and has also clerked for federal judges Robert Katzmann and Jed Rakoff.

State law requires supreme court nominees to pass the “advice and consent” of the state Senate one week after the governor issues a public notice of the nomination. 

This is Gov. Murphy’s second nominee to the seven-member supreme court. The court will switch from a 4-3 majority of justices appointed by Republican governors to a 4-3 majority of justices appointed by Democratic governors. According to state law, the New Jersey governor may appoint justices to have up to a one-seat partisan advantage on the court, but he or she may go no further than that.

Twenty-six state supreme courts have Republican majorities, 16 have Democratic majorities, and eight have split or indeterminate majorities.

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SCOTUS releases April argument calendar

Image of the front of the United States Supreme Court building.

On March 12, 2021, the Supreme Court of the United States (SCOTUS) scheduled its April argument sitting for the 2020-2021 term. The court will hear 13 hours of oral argument in 15 cases between April 19 and April 28. 

To date, all cases that have been accepted for argument during this term have been scheduled. Three cases originally scheduled for argument were removed from the calendar. In total, the court has agreed to hear 63 cases.

The following list organizes the cases by their scheduled argument dates:

April 19, 2021

  • Yellen v. Confederated Tribes of the Chehalis Reservation (Consolidated with Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation)
  • Sanchez v. Mayorkas

April 20, 2021

  • Greer v. United States
  • United States v. Gary
  • Terry v. United States

April 21, 2021

  • City of San Antonio, Texas v. Hotels.com, L.P.
  • Minerva Surgical Inc. v. Hologic Inc.

April 26, 2021

  • Americans for Prosperity v. Becerra (Consolidated with Thomas More Law Center v. Becerra)
  • Guam v. United States

April 27, 2021

  • HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association
  • United States v. Palomar-Santiago

April 28, 2021

  • Mahanoy Area School District v. B.L.
  • PennEast Pipeline Co. v. New Jersey

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Michigan/Ohio Judicial Selection Method yields most visible partisanship

The Michigan-Ohio method of judicial selection manifests the most signs of partisanship out of any of the eight methods used across state supreme courts, according to Ballotpedia’s recently-published study on state supreme courts.

There are three broad categories of state supreme court selection: Assisted Appointment, Direct Appointment, and Election. Within these three broad categories, there are eight ways of administering selection among the states. We classify them with the following subcategories:

• Assisted Appointment

◦ Assisted Appointment through Bar-Controlled Commission

◦ Assisted Appointment through Governor-Controlled Commission

◦ Assisted Appointment through Hybrid Commission

• Direct Appointment

◦ Direct Gubernatorial Appointment

◦ Direct Legislative Appointment

• Election

◦ Michigan-Ohio Method

◦ Partisan Election

◦ Nonpartisan Election

The Michigan-Ohio method selects justices through nonpartisan elections preceded by a partisan primary or convention. In these states, partisan primaries are held to determine judicial nominees, and the winners of each primary compete in a nonpartisan election for ultimate selection to the court. Only Michigan and Ohio use this method of judicial selection.

The Pure Partisanship Score attempts to show our total confidence in partisan affiliations on a court. Selection methods with a lower Pure Partisan Score have, on average, justices with lower Confidence Scores, without consideration of the specific party for which there is evidence of their party affiliation.

Of all selection methods, the Michigan-Ohio method produced justices with the highest Pure Partisanship Score, on average. Whereas the average Pure Partisanship Score for justices nationally is 7, justices in Michigan and Ohio record an average Pure Partisanship Score of 11. Of the 14 justices across both states’ supreme courts, four (all in Michigan) were selected by the governor to fill vacancies. Not including the scores for the four justices appointed to fill vacancies, the Michigan-Ohio method records an average Pure Partisanship Score of 10.3.

The method of selection which accounts for the second-highest average Pure Partisanship Score is Partisan Election, which records a score of 9.8. Seven states use this method: Alabama, Illinois, Louisiana, New Mexico, North Carolina, Pennsylvania, and Texas.

The method of selection that accounts for the third-highest average Pure Partisan Score is Nonpartisan Election, which records a score of 6.4. This method is used by 13 states: Arkansas, Georgia, Idaho, Kentucky, Minnesota, Mississippi, Montana, Nevada, North Dakota, Oregon, Washington, Wisconsin, and West Virginia.

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