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SCOTUS releases January argument calendar

The Supreme Court of the United States (SCOTUS) on Nov. 17 released the January argument calendar for the 2021-2022 term, scheduling eight cases for argument. The court will hear eight hours of oral argument between Jan. 10 and 19. 

Click the links below to learn more about the cases:

Jan. 10

  1. Gallardo v. Marstiller concerns tort claims and state Medicaid program reimbursement.

Jan. 11

  1. Johnson v. Arteaga-Martinez concerns the right of non-citizens in immigration detention to a bond hearing.
  2. Garland v. Gonzalez concerns the right of non-citizens in immigration detention to a bond hearing and the jurisdiction of federal courts to grant classwide injunctive relief in such cases.

Jan. 12

  1. Boechler, P.C. v. Commissioner of Internal Revenue concerns the time limit to file petitions with the United States Tax Court to review Internal Revenue Service (IRS) determinations.

Jan. 18

  1. Shurtleff v. City of Boston concerns religion, government speech, and whether a city flagpole is a public forum.
  2. Cassirer v. Thyssen-Bornemisza Collection Foundation concerns Foreign Sovereign Immunities Act (FSIA) and Holocaust Expropriated Art Recovery Act (2016) claims.

Jan. 19

  1. Federal Election Commission v. Ted Cruz for Senate concerns federal election law and political campaign finance rules and spending limits.
  2. Concepcion v. United States concerns sentencing requirements and reductions for drug offenses under the Fair Sentencing Act of 2010 and the First Step Act.

To date, the court has agreed to hear 49 cases during its 2021-2022 term. Four cases were dismissed and one case was removed from the argument calendar. Eight cases have not yet been scheduled for argument.

Additional reading:



SCOTUS hears arguments in second week of November argument sitting

The Supreme Court of the United States (SCOTUS) on Nov. 8 continued its November argument sitting of the the 2021-2022 term. The court is hearing arguments in person and providing audio livestreams of arguments.

This week, SCOTUS will hear arguments in five cases. Click the links below to learn more about these cases:

Nov. 8

Nov. 9

Nov. 10

To date, the court has agreed to hear 48 cases this term. Three cases were dismissed, and one case was removed from the argument calendar. Fifteen cases have not yet been scheduled for argument.

Additional reading:



SCOTUS begins November argument sitting

The Supreme Court of the United States (SCOTUS) began its November argument sitting of the 2021-2022 term on Nov. 1. The court is hearing arguments in person and providing audio livestreams of arguments.

This week, SCOTUS will hear arguments in five cases. Click the links below to learn more about these cases:

Nov. 1

  1. Whole Woman’s Health v. Jackson originated from the U.S. Court of Appeals for the 5th Circuit and asks the court to consider: “[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”
  2. United States v. Texas also originated from the Fifth Circuit and asks the court to consider: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.”

Nov. 2

  1. Houston Community College System v. Wilson asks the court to consider: “Does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member’s speech?” The case originated from the Fifth Circuit.
  2. Badgerow v. Walters originates from the Fifth Circuit and concerns “Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the [Federal Arbitration Act] where the only basis for jurisdiction is that the underlying dispute involved a federal question.”

Nov. 3

  1. New York State Rifle & Pistol Association Inc. v. Corlett originated from the U.S. Court of Appeals for the 2nd Circuit and asks SCOTUS to consider “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

Next week, SCOTUS will hear arguments in five cases.

To date, the court has agreed to hear 45 cases this term. Three cases were dismissed, and one case was removed from the argument calendar. Twelve cases have not yet been scheduled for argument.

Additional reading:



Bold Justice: SCOTUS holds November sitting

Bold Justice: SCOTUS holds November sitting

Welcome to the Nov. 1 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

It’s full steam ahead as SCOTUS enters the second month of its 2021-2022 term. Buckle up for an exciting lineup of cases, including two on Nov. 1 that came to the court under atypical circumstances. Let’s get to it!  

Stay up to date on the latest news by following Ballotpedia on Twitter or subscribing to the Daily Brew.

Brief station note

By the pricking of my thumbs, something wicked this way comes… Or, we’d like to think, something *witty* this way comes. Yes, dear readers, this newsletter is making a bit of a change. A name change, to be exact. Starting with the next edition on Nov. 8, Bold Justice shall transform and become known as Robe & Gavel. We’ll still be delivering all the latest on SCOTUS and federal courts activity, so don’t think we’ve ghosted you and please keep a weather eye on the horizon for our forthcoming editions. Thank you!

We #SCOTUS and you can, too!

Arguments

On Nov. 1, SCOTUS will begin its next argument session, hearing five cases during the first week of November. As of this writing, the court is scheduled to hear 11 hours and 5 minutes of oral arguments in 10 cases during the session. The court will hear arguments in person and stream live audio of the arguments. However, the court will remain closed to the public as part of its COVID-19 safety precautions.

Click the links below to read more about the specific cases before SCOTUS during the first week of its November sitting.

Nov. 1

Whole Woman’s Health v. Jackson concerns Texas law S.B. 8. The law bans abortion procedures after six weeks of pregnancy and authorizes a private civil right of action related to violations of the law. That means private citizens, including citizens residing outside of the state of Texas, can bring civil actions against individuals for helping a patient get an abortion. The bill does not authorize state officials to enforce the law, nor bring criminal proceedings, potentially precluding federal judicial review. 

Whole Woman’s Health et al, a group of Texas abortion providers, challenged the law’s provision that private citizens could enforce it through civil suits. Petitioners also alleged the law violates the Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) and the established constitutional right to have an abortion before the point of fetal viability approximately 24 weeks into a pregnancy. The Supreme Court limited its review of the case to the former issue regarding the law’s private enforcement mechanism.

The question presented: “[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

United States v. Texas concerns whether the federal government has the right to challenge Texas law S.B. 8 in federal court. The U.S. Department of Justice (DOJ) sought an order from the U.S. District Court for the Western District of Texas to stop Texas and any state employees or agents from enforcing the law while the courts determined the law’s validity. The district court granted the DOJ’s request on Oct. 6. The state appealed to the U.S. Court of Appeals for the 5th Circuit, and on Oct. 14, the 5th Circuit stayed, or paused, the district court’s ruling to block enforcement, allowing S.B. 8’s enforcement to resume.

In response, the DOJ filed an emergency appeal with the U.S. Supreme Court to vacate the 5th Circuit’s ruling. SCOTUS allowed the 5th Circuit’s ruling to stand. However, SCOTUS converted the DOJ’s application into a petition for writ of certiorari before judgment—meaning that SCOTUS would hear arguments in the case on the merits before the lower court issued a ruling. The Supreme Court granted review on Oct. 22 and scheduled arguments.

The question presented: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.”

Both cases came to the court on a writ of certiorari before the 5th Circuit issued a final judgment, which is rare in appellate court practice. According to Supreme Court Rule 11, a writ of certiorari before judgment “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

Nov. 2

Houston Community College System v. Wilson concerns free speech protections and limitations on an elected governing body’s authority to censure a member’s speech. David Wilson was an elected member of the Houston Community College System’s board of trustees. In 2017, Wilson alleged that some members had violated the board’s bylaws and publicly criticized some of the board’s and the school’s actions. Wilson filed two lawsuits in state court to stop the actions. The board censured Wilson, barring him from holding officer positions with the board and requiring him to cease and desist. Wilson claimed the censure violated his constitutional rights to free speech and equal protection. The case moved to the U.S. District Court for the Southern District of Texas. The court dismissed the case, holding that Wilson had not demonstrated an actual injury and did not have legal standing to continue the suits. On appeal, the U.S. Court of Appeals for the 5th Circuit reversed the ruling and remanded the case for further proceedings.

The question presented: “Does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member’s speech?”

Badgerow v. Walters concerns the federal courts’ jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act. After the Financial Industry Regulatory Authority (FINRA) ruled against her, petitioner Denise Badgerow filed suit in Louisiana state court to vacate FINRA’s award, alleging the defendants–Badgerow’s former employers Greg Walters, Thomas Meyer, and Ray Trosclair–committed fraud. The defendants then transferred the case from state court to federal court. Badgerow objected, arguing that the federal court lacked legal authority to hear the case. 

Using the U.S. Supreme Court’s analysis established in Vaden v. Discover Bank (2009) for claims brought under the Federal Arbitration Act (FAA), the U.S. District Court for the Eastern District of Louisiana held that the parties’ underlying dispute could have been brought in federal court and federal jurisdiction over the FAA petition was valid. On appeal, the U.S. Court of Appeals for the 5th Circuit affirmed the ruling.

The question presented: “Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the FAA where the only basis for jurisdiction is that the underlying dispute involved a federal question.”

Nov. 3

New York State Rifle & Pistol Association Inc. v. Corlett concerns an individual’s right to carry a firearm for self-defense under the Constitution’s Second Amendment. Robert Nash and Brandon Koch each applied for a concealed-carry firearm license for the purpose of self-defense. The licensing officer denied both applications, finding that neither individual met the proper cause standard that New York law requires in order to issue a firearms license for general self-defense. 

New York courts have defined proper cause as requiring the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community.” 

Nash and Koch filed a lawsuit with the U.S. District Court for the Northern District of New York for violation of their Second Amendment rights. The district court dismissed the suit, citing the 2nd Circuit’s ruling in Kachalsky v. County of Westchester (2012) that New York’s proper cause requirement did not violate the Second Amendment. On appeal, the United States Court of Appeals for the 2nd Circuit affirmed the judgment.

The question presented: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

Grants

SCOTUS accepted four cases to its merits docket since our Oct. 12 issue. The court has granted review in a total of 43 cases for the 2021-2022 term. Three cases were dismissed and one case was removed from the argument calendar. Ten cases have not yet been scheduled for argument.

  • Ysleta del Sur Pueblo v. Texas concerns the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act (1987), the Indian Gaming Regulatory Act (IGRA) (1988), gaming regulation on tribal lands, and the sovereign authority of Native American tribal nations. The question the court will decide is: “Whether the Restoration Act provides the Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the Act’s legislative history, and this Court’s holding in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), or whether the Fifth Circuit’s decision affirming Ysleta I (1994) correctly subjects the Pueblo to all Texas gaming regulation.” Ysleta del Sur Pueblo came from the U.S. Court of Appeals for the 5th Circuit. SCOTUS granted review in the case on Oct. 18.
  • Denezpi v. United States concerns the Court of Indian Offenses’ jurisdiction, the double jeopardy clause of the U.S. Constitution’s Fifth Amendment, and the dual-sovereignty doctrine. The question presented to the court asks: “Is the Court of Indian Offenses of Ute Mountain Ute Agency a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident?” Denezpi came from the U.S. Court of Appeals for the 10th Circuit. SCOTUS granted review on Oct. 18.
  • Whole Woman’s Health v. Jackson and United States v. Texas concern Texas law S.B. 8 and are discussed in greater detail in the November sitting section above. SCOTUS granted review in both cases on Oct. 22.

Opinions

Since our Oct. 12 issue, SCOTUS issued the first two opinions of its 2021 term. On Oct. 18, the court issued per curiam rulings in Rivas-Villegas v. Cortesluna and City of Tahlequah, Oklahoma v. Bond. In both cases, the court ruled that the police officers had qualified immunity for actions performed while on duty, meaning the officers could not be held personally responsible for monetary damages resulting from a lawsuit for violations of a person’s constitutional rights. A per curiam ruling is an opinion issued in the name of the court rather than by specific judges.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • Nov. 1: SCOTUS will hear arguments in two cases.
  • Nov. 2: SCOTUS will hear arguments in two cases.
  • Nov. 3: SCOTUS will hear arguments in one case.
  • Nov. 5: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

Who was the chief justice when the Supreme Court decided Roe v. Wade?

  1. Harlan Fiske Stone
  2. Warren Burger
  3. Earl Warren
  4. William Rehnquist

Choose an answer to find out!

Federal court action

Nominations

President Joe Biden (D) has not announced any new Article III nominees since our Oct. 12 edition. Since taking office on Jan. 20, 2021, Biden has announced a total of 51 Article III judicial nominations. For more information on the president’s judicial nominees, click here.

Committee action

The Senate Judiciary Committee has voted on five new Article III nominees since our Oct. 12 edition.

Four nominees were reported favorably:

One nominee was not reported favorably:

The Senate Judiciary Committee split 10-10 on the vote to advance Sung’s nomination to the full Senate. To move Sung’s nomination forward, the Senate must vote to discharge it from the committee.

Confirmations

Ten of Biden’s nominees have been confirmed since our last issue:

Vacancies

The federal judiciary currently has 78 vacancies, 72 of which are for lifetime Article III judgeships. 

According to the Administrative Office of U.S. Courts, there were 29 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.

For more information on judicial vacancies during Biden’s term, click here.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published at the start of each month, monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Hello again, gentle reader! Another issue, another president illuminated in our exploration of federal court nominations through time. This week we look back at a two-term president who led the country through the world’s first great war. The time was 1913-1921 and President Woodrow Wilson (D) was at the helm.

During his tenure, President Wilson nominated 75 federal judges who were successfully confirmed and commissioned to the bench. Two nominees declined their nominations and the U.S. Senate either rejected or did not vote on seven nominees. 

Among the most notable appointees were three Supreme Court justices:

On Mar. 28, 1913, President Wilson made his first appointment to an Article III court–the recess appointment of Rhydon Mays Call to the U.S. District Court for the Southern District of Florida. Call was nominated to the post on Apr. 12 and confirmed on Apr. 24. By the end of Wilson’s first year in office, eight of his Article III nominees had been confirmed–three to the U.S. circuit courts and five to the U.S. district courts.

Wilson averaged 9.9 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year. 

Looking ahead

We’ll be back on Nov. 30 with a new edition of the newsletter in its new incarnation as Robe & Gavel. Until then, gaveling out! 

Contributions

Brittony Maag and Kate Carsella compiled and edited this newsletter, with contributions from Jace Lington and Sara Reynolds.



SCOTUS updates November argument calendar

The Supreme Court of the United States (SCOTUS) updated its November calendar for arguments on Oct. 22 after accepting and scheduling two new cases to its merits docket, Whole Woman’s Health v. Jackson and United States v. Texas.  

Click the links below to learn more about the cases scheduled for argument during the November sitting:

Nov. 1

Nov. 2

Nov. 3

Nov. 8

Nov. 9

Nov. 10

The case Shinn v. Ramirez was originally scheduled for arguments on Nov. 1 but has been de-calendered pending rescheduling.

To date, the court has agreed to hear 43 cases during its 2021-2022 term. Three cases were dismissed, and one case was removed from the argument calendar. Eleven cases have not yet been scheduled for argument. 

Additional reading:



SCOTUS accepts two cases related to Texas’ S.B. 8; schedules argument for Nov. 1

The Supreme Court of the United States (SCOTUS) accepted two new cases on Oct. 22 for review during its 2021-2022 term. Both cases relate to Texas’ abortion law S.B. 8 and have been scheduled for oral argument on Nov. 1.

  1. Whole Woman’s Health v. Jackson concerns a state’s ability to avoid federal judicial review of state law by creating a private enforcement mechanism. The question before to the court is: “[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.” Whole Woman’s Health originated from the United States Court of Appeals for the 5th Circuit.
  2. United States v. Texas concerns the federal government’s right to challenge Texas law S.B. 8 in federal court. The question presented to the court asks: “May the United States bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.” The caseoriginated from the United States Court of Appeals for the 5th Circuit.

Both cases came to the Supreme Court on a writ of certiorari before judgment, which means the Supreme Court will consider the cases before the lower appellate court reaches a final judgment. In contrast, a typical grant of certiorari involves the Supreme Court hearing a case only after the lower appellate court has issued its judgment. According to Supreme Court Rule 11, a writ of certiorari before judgment “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

The Supreme Court began hearing cases for its 2021-2022 term on Oct. 4. It heard arguments in nine cases during its October sitting and at the time of this writing is scheduled to hear arguments in 11 cases during its November sitting, which is scheduled to begin Nov. 1. As of Oct. 22, the court had agreed to hear 43 cases this term. Three cases were dismissed, and one case was removed from the argument calendar. Ten cases have not yet been scheduled for argument.

Additional reading:



SCOTUS accepts two cases to 2021-2022 merits docket

The Supreme Court of the United States (SCOTUS) on Oct. 18 accepted two cases for argument during the 2021-2022 term:

  1. Ysleta del Sur Pueblo v. Texas, originating from the U.S. Court of Appeals for the 5th Circuit
  2. Denezpi v. United States, originating from the U.S. Court of Appeals for the 10th Circuit.

Both cases concern the sovereign powers of Native American tribal nations. Ysleta del Sur Pueblo involves the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act (1987), the Indian Gaming Regulatory Act (IGRA) (1988), and gaming regulation on tribal lands. Denezpi involves the Court of Indian Offenses’ jurisdiction and the Fifth Amendment to the U.S. Constitution’s double jeopardy clause, which prohibits an individual from being prosecuted for the same crime twice.

To date, the court has agreed to hear 41 cases during the term. Three cases were dismissed, and one case was removed from the argument calendar. Ten cases have yet to be scheduled for arguments.

Additional reading:



SCOTUS begins October sitting for 2021-2022 term

The Supreme Court of the United States (SCOTUS) began its first argument sitting of the 2021-2022 term on Oct. 4. The court will hear arguments in person for the first time since March 2020. Argument audio will be streamed live to the public.

Justice Brett Kavanaugh will participate remotely, due to testing positive for coronavirus on Sept. 30.

This week, SCOTUS will hear arguments in five cases for a total of five hours of oral argument. Click the links below to learn more about these cases:

Oct. 4

  1. Mississippi v. Tennessee concerns a dispute between Mississippi and Tennessee involving an aquifer’s groundwater. The case comes under the court’s original jurisdiction as it is a dispute among states, meaning SCOTUS is the first court to hear the case.
  2. Wooden v. United States concerns the Fourth Amendment to the U.S. Constitution and how predicate offenses are considered and classified under the Armed Career Criminal Act (ACCA). A predicate offense is a crime that may be considered a component of a larger crime.

Oct. 5

  1. Brown v. Davenport concerns a circuit split over the standard necessary to grant federal habeas relief to a person held in state custody. A writ of habeas corpus is used in federal courts to determine if an individual’s imprisonment is lawful. A circuit split occurs when two or more U.S. circuit courts issue rulings with opposite interpretations of federal law.
  2. Hemphill v. New York concerns a criminal defendant’s constitutional right to be confronted by the witnesses against him.

Oct. 6

  1. United States v. Zubaydah concerns the state-secrets privilege, an evidentiary rule that allows the government to withhold information if disclosure would harm national security. 

Next week, SCOTUS will hear four hours of oral argument in four cases.

To date, the court has agreed to hear 39 cases this term. Two cases were dismissed after they were granted. Nine cases have not yet been scheduled for argument.

Additional reading:



SCOTUS accepts 5 cases, Justice Kavanaugh tests positive for COVID-19

On Sept. 30, 2021, the Supreme Court of the United States (“SCOTUS”) accepted five cases to its merits docket for the 2021-2022 term:

  1. Federal Elections Commission v. Cruz involves Sen. Ted Cruz’s (R-TX) challenge to federal election law regarding how and when candidates may repay personal loans made to their political campaigns. The case originated from the U.S. Court of Appeals for the District of Columbia Circuit.
  2. Boechler, P.C. v. Commissioner of Internal Revenue concerns the time limit to file petitions with theUnited States Tax Court to reviewInternal Revenue Service (IRS) determinations. The case originated from the U.S. Court of Appeals for the 8th Circuit.
  3. ​​Cassirer v. Thyssen-Bornemisza Collection Foundation concerns Foreign Sovereign Immunities Act (FSIA) claims. The case originated from the U.S. Court of Appeals for the 9th Circuit.
  4. Concepcion v. United States concerns sentencing requirements under the Fair Sentencing Act of 2010 and the First Step Act. The case originated from the U.S. Court of Appeals for the 1st Circuit.
  5. Shurtleff v. City of Boston concerns religion, government speech, and whether a city flagpole is a public forum. The case originated from the 1st Circuit.

To date, the court has agreed to hear 39 cases during the term. SCOTUS dismissed two cases after they were accepted. Nine cases have yet to be scheduled for arguments.

On Oct. 1, SCOTUS announced that Justice Brett Kavanaugh tested positive for coronavirus. The court stated that Kavanaugh tested positive on Thursday, Sept. 30, following a routine test, adding that he was asymptomatic and had been fully vaccinated since January 2021. Kavanaugh did not attend the Oct. 1 investiture ceremony for Justice Amy Coney Barrett. Kavanaugh and the other eight justices had tested negative as of Monday, Sept. 27, prior to the justices’ conference.

Additional reading:



Bold Justice: SCOTUS is back in session!

Bold Justice: SCOTUS begins October term 2021

Welcome to the October 4 edition of Bold Justice, Ballotpedia’s newsletter about the Supreme Court of the United States (SCOTUS) and other judicial happenings around the U.S.

It’s October and we all know what that means—the court is back in session! The October 2021-2022 term has begun. Let’s gavel in and see what’s on the docket, shall we?

Stay up to date on the latest news by following Ballotpedia on Twitter or subscribing to the Daily Brew.

We #SCOTUS and you can, too!

Noteworthy court announcements

Here’s a quick roundup of the court’s most recent noteworthy announcements since the September 13 edition of Bold Justice:

Justice Brett Kavanaugh tests positive for coronavirus

  • On October 1, SCOTUS announced that Justice Brett Kavanaugh tested positive for coronavirus. The court stated that Kavanaugh tested positive on Thursday, September 30, following a routine test, adding that he was asymptomatic and was fully vaccinated in January 2021. Kavanaugh would not attend the October 1 investiture ceremony for Justice Amy Coney Barrett. The other eight justices and Justice Kavanaugh most recently tested negative on Monday, September 27, prior to the justices’ conference.

Court releases COVID-19 procedures for oral arguments during October, November, December sittings

  • On September 27, SCOTUS released new procedures for oral arguments during the term’s October, November, and December sittings, in accordance with the court’s COVID-19 protocols. 

According to the clerk of court’s announcement:

  1. Legal counsel presenting their cases in person must take a COVID test the morning before argument.
  2. Attorneys who test positive for COVID will participate remotely via teleconference.
  3. Counsel will be informed of courtroom procedures and may ask questions in the lawyer’s lounge before presenting their case. Argument audio will be made available in the lawyer’s lounge. Counsel must leave the court building once arguments in their case conclude.
  4. Counsel are required to wear masks covering their noses and mouths at all times while within the court building, except when eating or drinking. Counsel are required to wear N95 or KN95 masks in the courtroom, except when presenting arguments. The court will provide masks.

The court also released new questioning procedures for oral argument for the 2021 term. At the end of each attorney’s time, the court will ask additional questions justice by justice, in order of seniority.

The court previously announced that it would hear oral arguments in person for the first time since March 4, 2020. Argument audio will be streamed live to the public, following the precedent set during the 2020-2021 term. Audio files and argument transcripts will be posted on the court’s website following oral argument each day.

Grants

SCOTUS has accepted five new cases to its merits docket since our September 13 issue. To date, the court has agreed to hear 39 cases for the 2021-2022 term. SCOTUS dismissed two cases after they were accepted. Nine cases have yet to be scheduled for arguments.

Arguments

The Supreme Court will hear five hours of arguments this week. Click here to read more about SCOTUS’ current term.

Click the links below to learn more about these cases:

Oct. 4

  • Mississippi v. Tennessee concerns a dispute between Mississippi and Tennessee involving an aquifer’s groundwater. The case comes under the court’s original jurisdiction as it is a dispute among states, meaning SCOTUS is the first court to hear the case.
    • The questions presented: 
      • Whether Mississippi can seek relief from Tennessee over its use of approximately 252 billion gallons of groundwater at issue;
      • Whether Mississippi has sole authority over and control of the aquifer’s groundwater; and
      • Whether Mississippi is entitled to damages and other equitable relief as a result of Tennessee’s use of the groundwater.
  • Wooden v. United States concerns the Fourth Amendment to the U.S. Constitution and how predicate offenses are considered and classified under the Armed Career Criminal Act (ACCA). A predicate offense is a crime that may be considered a component of a larger crime.
    • The questions presented: 
      • When local sheriff’s department officers entered and searched William Wooden’s home without a warrant, did they violate Wooden’s Fourth Amendment protections from illegal search and seizure?
      • Were the lower courts in the case wrong in their conclusion that 10 prior felony offenses committed as part of a single event counted as separate crimes rather than a single predicate crime, therefore classifying Wooden as an armed career criminal under the ACCA?

Oct. 5

  • Brown v. Davenport concerns a circuit split over the standard necessary to grant federal habeas relief to a person held in state custody. A writ of habeas corpus is used in federal courts to determine if an individual’s imprisonment is lawful. A circuit split occurs when two or more U.S. circuit courts issue rulings with opposite interpretations of federal law.
    • The questions presented: Whether a U.S. court may grant habeas relief based solely on concluding that the Brecht v. Abrahamson (1993) test is satisfied, as the U.S. Court of Appeals for the Sixth Circuit held, or must the court also find that the state court’s Chapman v. California (1967) application was unreasonable, as the Second, Third, Seventh, Ninth, and Tenth Circuits have held.
    • The Brecht test established that habeas relief must be granted when a trial error substantially injured or influenced the jury’s verdict. The Chapman standard for direct appeals requires that a trial error must be proven harmful beyond a reasonable doubt.
  • Servotronics, Inc. v. Rolls-Royce PLC concerns a circuit split over evidence gathering in foreign or international tribunals.
    • The questions presented: Whether U.S. district courts’ authority to assist in evidence gathering in a foreign or international tribunal includes private commercial arbitration proceedings, as the U.S. Court of Appeals for the Fourth and Sixth Circuits have held, or excludes these tribunals, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held. The latter courts ruled that U.S. district courts may only assist in state-sponsored foreign tribunals. The Sixth Circuit found that a private foreign arbitral tribunal is a foreign or international tribunal.

Oct. 6

  • United States v. Zubaydah concerns the state-secrets privilege, an evidentiary rule that allows the government to withhold information if disclosure would harm national security. 
    • The questions presented: Whether the U.S. Court of Appeals for the 9th Circuit was wrong when it a) rejected the United States’ assertion of the state-secrets privilege and b) required limited discovery over nonprivileged information to proceed against former Central Intelligence Agency (CIA) contractors. 
    • Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah and a former associate of Osama bin Laden, was detained in Poland by the CIA. The former contractors allegedly tortured Zubaydah during his detention.

In its October 2020 term, SCOTUS heard arguments in 62 cases. Click here to read more about SCOTUS’ previous term.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

  • Oct. 4: SCOTUS will hear arguments in two cases.
  • Oct. 5: SCOTUS will hear arguments in two cases.
  • Oct. 6: SCOTUS will hear arguments in one case.
  • Oct. 8: SCOTUS will conference. A conference is a private meeting of the justices.
  • Oct. 12: SCOTUS will hear arguments in two cases.
  • Oct. 13: SCOTUS will hear arguments in two cases.
  • Oct. 15: SCOTUS will conference. A conference is a private meeting of the justices.

SCOTUS trivia

The Judiciary Act of 1789 created the federal court system outlined in Article III of the U.S. Constitution. Article III only authorizes “one supreme Court,” but gives Congress the power to create “inferior Courts…from time to time.”

In addition to creating federal courts, the Act also created which of the following positions?

  1. U.S. Attorney General 
  2. Clerk of Court
  3. U.S. Marshal
  4. All of the above

Choose an answer to find out!

Federal court action

Nominations

President Joe Biden (D) has announced 10 new Article III nominees since our September 13 edition.

The president has announced 51 Article III judicial nominations since taking office on January 20, 2021. For more information on the president’s judicial nominees, click here.

Committee action

The Senate Judiciary Committee has reported five new nominees out of committee since our September 13 edition.

Confirmations

The Senate has confirmed five nominees since our September 13 issue. 

Vacancies

The federal judiciary currently has 86 vacancies, 81 of which are for lifetime Article III judgeships. As of publication, there were 37 pending nominations.

According to the Administrative Office of U.S. Courts, there were 31 upcoming vacancies in the federal judiciary, where judges have announced their intention to leave active judicial status.

For more information on judicial vacancies during President Biden’s term, click here.

Do you love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count monitors all the faces and places moving in, moving out, and moving on in the federal judiciary. Click here for our most current count.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, keep an eye on our list for updates on federal judicial nominations.

Spotlight: Presidential nominations to federal courts

Hello, gentle readers! This installment of our journey through federal judicial history invites us to run some rum and cool our heels to the exuberant sounds of Louis Armstrong’s brass trumpet. Today, we visit the years between 1923 and 1929, highlighting President Calvin Coolidge’s (R) federal judicial nominees.

During his time in office, the U.S. Senate confirmed 88 of President Coolidge’s judicial nominees. The Senate did not vote on or rejected 14 of Coolidge’s nominees. One nominee declined the nomination and four nominees were withdrawn.

Among the most notable appointees was one Supreme Court Justice:

By the end of his first year in office, none of President Coolidge’s nominees had been confirmed. Coolidge’s first Article III appointees were confirmed on January 8, 1924—two nominees were confirmed to U.S. District Courts. 

Coolidge averaged 12.2 judicial appointments per year. For comparison, President Jimmy Carter (D) had the highest average from 1901 to 2021 with 65.5 appointments per year.

Looking ahead

We’ll be back on October 12 with a new edition of Bold Justice. Until then, gaveling out! 

Contributions

Kate Carsella compiled and edited this newsletter, with contributions from Brittony Maag, Jace Lington, and Sara Reynolds.