Tagjudicial

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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Biden made no federal judicial appointments through March 1, same as previous administrations

President Joe Biden (D) has not yet made any Article III federal judicial appointments through March 1 of his first year in office. This is equal to the number of Article III judicial appointments through this point in all presidencies since President Ronald Reagan (R). 

Both the average and median numbers of federal judges appointed by a president through March 1 of their first year in office are zero.

Since 1981, during a president’s first year in office: 

• The average number of Supreme Court justices appointed is one. Presidents Donald Trump (R), Barack Obama (D), Bill Clinton (D), and Reagan each appointed one Supreme Court justice.

• The average number of United States Court of Appeals judges appointed is six. Trump appointed the most with 12, and Clinton and Obama are tied for appointing the fewest with three.

• The average number of United States District Court judges appointed is 17. Reagan appointed the most, 32, and Trump appointed the fewest with six.

• Reagan had appointed the most Article III federal judges during his first year in office with 41, while Obama had appointed the fewest in that time with 13. 

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.

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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.

HIGHLIGHTS

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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Federal judge blocks Maine’s ban on out-of-state initiative petition circulators 

On Feb. 16, U.S. District Court Judge John Woodcock blocked Maine from enforcing provisions of its state constitution and a 2015 law requiring petition circulators to be registered voters, and, therefore, state residents. Woodcock ruled that “the First Amendment’s free speech protections trump the state’s regulatory authority.” Secretary of State Shenna Bellows could appeal the ruling to the First Circuit Court of Appeals. The ruling also said, “The Court framed its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling.”

The ruling makes it possible for proponents of a 2022 ballot initiative that would amend the state’s voter qualification statute to say that a person must be a citizen to vote to qualify the measure for the 2022 ballot. Rep. William Faulkingham (R-136) initially filed the ballot initiative in 2019 and, after suspending the campaign due to a lack of funds that year, relaunched it targeting the 2022 ballot.

Rep. Faulkingham, his political action committee We the People PAC, the Liberty Initiative Fund—which is providing funding for signature gathering—and Nicholas Kowalski—a petition circulator from Michigan—were plaintiffs in the lawsuit. They argued that the U.S. Supreme Court has ruled that “ballot access rules which reduce the pool of available circulators of initiative petitions is a severe impairment” and that residency requirements significantly impede their ability to qualify their measure for the ballot. Plaintiffs also argued that the circulator restrictions prevent them from associating with a large portion of the available professional petition circulators and that requiring out-of-state circulators to register with the state is sufficient to safeguard the integrity of the initiative process.

Secretary of State Shenna Bellows and Deputy Secretary of State Julie Flynn were named as defendants. They argued that many other initiatives and veto referendums have successfully qualified for the ballot while adhering to the state’s circulator requirements, proving the requirements are not a severe burden on free speech. The defendants also said that the state’s circulator requirements have been upheld by state courts and that the circulator requirements are necessary for the state’s interests in protecting the integrity of the initiative process and “protecting the initiative’s grassroots nature.”

Proponents used professional out-of-state petition circulators along with volunteers and paid in-state petition circulators starting on Nov. 3 to collect signatures. The plaintiffs also filed a lawsuit seeking an injunction against Maine’s residency requirement on Dec. 30, 2020.

The plaintiffs said they competed with No CMP Corridor, the campaign behind an initiative concerning approval of certain electric transmission lines, for in-state professional circulators. Plaintiffs said they were able to find no more than six available professional circulators that were Maine residents. The campaign reported gathering 38,000 signatures by Jan. 25, 2021, and said that 90% of the signatures were collected by the 49 out-of-state professional circulators. The remaining 10% were gathered by six in-state professional petition circulators, 24 volunteer circulators, and 42 paid in-state circulators.

As of Feb. 17, Faulkingham said the campaign had gathered 88,000 signatures. A total of 63,067 valid signatures are required by Feb. 26, 2021, to qualify the measure for the 2022 ballot. Woodcock’s ruling, provided it is not appealed or is upheld upon appeal, allows the initiative campaign to use the signatures collected by out-of-state circulators.

Similar measures explicitly requiring citizenship to vote were approved by voters in Alabama, Colorado, and Florida in 2020 and in North Dakota in 2018.

As of February 2021, seven states—out of the 26 with a statewide initiative or veto referendum process—had residency requirements for ballot initiative petition circulators. An additional three states—Colorado, Maine, and Mississippi—had requirements in their laws, but federal courts had invalidated or blocked the enforcement of the laws.

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Justice on Missouri’s highest court schedules retirement

Missouri Supreme Court Justice Laura Denvir Stith announced on February 2, 2021, that she would retire from the court effective March 8. Stith stated she planned to do pro bono work following her retirement from the court.

Justice Stith joined the Missouri Supreme Court in 2001. She was appointed to the court by Governor Bob Holden (D). Stith was retained by voters in 2002, and again in 2014 for a term that would have expired on December 31, 2026.

Stith’s replacement will be Governor Mike Parson’s (R) first nominee to the seven-member supreme court. Before Stith’s retirement, a Democratic governor appointed four justices on the court and a Republican governor appointed three justices. After Gov. Parson appoints Stith’s replacement, the composition of the court will flip to four justices appointed by a Republican governor and three appointed by a Democratic governor.

Before serving on the state supreme court, Stith served as a judge with the Missouri Court of Appeals from 1994 to 2001. She worked as a private practice attorney from 1980 to 1994. Stith worked as a law clerk for Robert E. Seiler with the Missouri Supreme Court from 1978 to 1979.

Stith earned a B.A. in political science and social psychology from Tufts University in 1975 and her J.D. from Georgetown University Law Center in 1978.

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. After one year on the court, an appointed judge must run in the next general election to retain the seat. After their first retention election, supreme court justices serve 12-year terms and must win their retention elections to remain on the court.

The current chief justice of the court is George Draper, who was appointed by Gov. Jay Nixon (D) in 2012.

The remaining five active justices of the court are:

Zel Fischer – Appointed by Gov. Matt Blunt (R) in 2008

Paul C. Wilson – Appointed by Gov. Jay Nixon (D) in 2012

Mary Rhodes Russell – Appointed by Gov. Bob Holden (D) in 2004

Patricia Breckenridge – Appointed by Gov. Matt Blunt (R) in 2007

Wesley Brent Powell – Appointed by Gov. Eric Greitens (R) in 2017

As of February 5, 2021, there are seven supreme court vacancies in six of the 29 states where replacement justices are appointed instead of elected.

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Ballotpedia releases federal judicial vacancy count for January 2021

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

HIGHLIGHTS

Vacancies: There have been 11 new judicial vacancies since the December 2020 report. There are 57 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, 60 of 890 active federal judicial positions are vacant.

Nominations: There were no new nominations since the December 2020 report.

Confirmations: There have been no new confirmations since the December 2020 report.

New vacancies

There were 57 vacancies out of 870 active Article III judicial positions, a total vacancy percentage of 6.6.

• 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.

• 52 (7.7%) 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.

Eleven 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 William Alsup assumed senior status on the U.S. District Court for the Northern District of California.

• Judge Janet Hall assumed senior status on the U.S. District Court for the District of Connecticut.

• Judge Robert Katzmann assumed senior status on the U.S. Court of Appeals for the 2nd Circuit.

• Judge Larry Burns assumed senior status on the U.S. District Court for the Southern District of California.

• Judge Theresa Springmann assumed senior status on the U.S. District Court for the Northern District of Indiana.

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

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

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

• Judge Jeffrey White assumed senior status on the U.S. District Court for the Northern District of California.

• Judge Phyllis Hamilton assumed senior status on the U.S. District Court for the Northern District of California.

• Judge Roslynn Mauskopf retired from the U.S. District Court for the Eastern District of New York.

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 February 1, 2021.

New nominations

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

New confirmations

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

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