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SCOTUS applies major questions doctrine to limit agency authority

The U.S. Supreme Court on June 30, 2022, invoked the major questions doctrine in a decision that limits the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions. The ruling in West Virginia v. Environmental Protection Agency (EPA) could limit the efforts of other federal agencies to engage in broad policymaking not specifically authorized by Congress.

The case concerned whether Congress had delegated regulatory power to the EPA concerning greenhouse gas emissions. The court found that nowhere in the Clean Air Act had Congress granted the EPA specific authority to regulate greenhouse gas emissions and, therefore, the agency had overstepped its authority when it attempted to enact such a regulatory scheme under the Obama-era Clean Power Plan.

The court’s decision centered on the major questions doctrine—a principle of judicial review that requires Congress to speak clearly when it delegates regulatory authority to agencies on questions of political or economic significance. As Chief Justice John Roberts stated in the majority opinion, the major questions doctrine “took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we.”

Justice Elena Kagan issued a dissenting opinion, arguing that the majority ruling prevents the EPA from taking congressionally authorized action. “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy,” wrote Kagan. “I cannot think of many things more frightening.”

SCOTUSblog analyst Amy Howe described what she and other scholars consider to be the significance of the ruling, claiming that Robert’s opinion “likely will have ripple effects far beyond the EPA. His reasoning applies to any major policymaking effort by federal agencies.”

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SCOTUS accepts two new cases for its 2022-2023 term

The Supreme Court of the United States (SCOTUS) accepted two cases for argument during its October 2022-2023 term on April 25. To date, the court has agreed to hear arguments in 11 cases next term.

Reed v. Goertz concerns a split between the U.S. circuit courts on when the statute of limitations begins to run for a criminal defendant to file a federal claim for DNA testing of crime-scene evidence. The question presented to the court in the case is: “[W]hether the statute of limitations for a §1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state court litigation denying DNA testing, including any appeals (as the Eleventh Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the Fifth Circuit, joining the Seventh Circuit, held below).” The case originated from the U.S. Court of Appeals for the 5th Circuit.

Mallory v. Norfolk Southern Railway Co. concerns the 14th Amendment and a state’s ability to condition a corporation doing business in that state on the corporation consenting to personal jurisdiction. The court will consider the following question: “Whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.” The case came to the court from the Pennsylvania Supreme Court.

The court will begin hearing cases for its 2022-2023 term on Oct. 3, 2022.

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Ketanji Brown Jackson confirmed to the United States Supreme Court

The U.S. Senate voted 53-47 to confirm Ketanji Brown Jackson to the Supreme Court of the United States on April 7, 2022. When she assumes office, she will become the first Black woman to serve on the highest court in United States history. Jackson will be sworn in when Justice Stephen Breyer retires during the court’s summer recess, which usually starts in late June or early July. 

Jackson was the first Supreme Court nominee to receive a confirmation vote in a 50-50 Senate. All 48 Democrats and the two independents who caucus with Democrats voted to confirm. Additionally, Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), and Mitt Romney (R-Utah) also voted to confirm. This is the most votes a nominee has received from the opposition party since Justice Neil Gorsuch’s confirmation in 2017. Gorsuch received three Democratic votes for his confirmation.

Since Justice Samuel Alito’s confirmation in 2006, nominees have received an average of four votes from senators who don’t caucus with the President’s party. Since 1967, when the Senate held its first roll call confirmation vote after Hawaii became the 50th state, the overall average of opposition party confirmation yes votes is 28.

The confirmation vote took place after a tied Senate Judiciary Committee vote (11-11) on April 4. On the same day, per an organizing resolution passed at the start of the 117th Congress, the full Senate voted 53-47 to advance her nomination from committee. 

Biden first announced he would nominate Jackson on Feb. 25, and formally transmitted the nomination to the Senate on Feb. 28. Prior to her nomination, Jackson served as a judge on the United States Court of Appeals for the District of Columbia Circuit. Biden nominated her to that post in April 2021, and the Senate confirmed her with a 53-44 Senate vote on June 14, 2021. Three Republicans, Sens. Susan Collins (R-Maine), Lindsey Graham (R-S.C.), and Lisa Murkowski (R-Alaska), voted to confirm Jackson to that post.

From the formal date of nomination to confirmation, Jackson’s confirmation process lasted 39 days. This was longer than Justice Amy Coney Barrett’s confirmation process, which lasted 28 days, but shorter than the process for Justices Brett Kavanaugh (90 days) and Gorsuch (67 days).

The average length of a Supreme Court vacancy since 1962, when measured from the retirement announcement to confirmation of a successor, is 132 days. The longest vacancy was between the terms of Antonin Scalia and Neil Gorsuch at 419 days, and the shortest was between the terms of Charles Evans Whittaker and Byron White at 13 days. Breyer announced his retirement on Jan. 27, 2022. Between Jan. 27, 2022, and April 7 there were 71 days, placing the length of time between Breyer’s announcement and Jackson’s confirmation below the average since 1962.

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Senate Judiciary Committee to vote on whether to advance Ketanji Brown Jackson’s nomination April 4

The Senate Judiciary Committee is scheduled to vote on whether to advance Ketanji Brown Jackson’s Supreme Court nomination on April 4. Chairman Dick Durbin (D-Ill.) announced the date on March 23.

The committee is made up of 11 Democrats and 11 Republicans. Jackson can advance with a tied vote under an organizing resolution passed at the start of the 117th Congress. If advanced by the committee, the full Senate will then vote on her confirmation.

In 2020, Amy Coney Barrett’s committee vote took place on Oct. 22, and her full Senate confirmation vote took place on Oct. 26. When Justice Stephen Breyer’s vacancy was announced, President Joe Biden (D) said he hoped to have a nominee confirmed within 40 days of the nomination, which would be April 9, 2022.

The average length of a Supreme Court vacancy since 1962, when measured from the retirement announcement to confirmation of a successor, is 132 days. The longest vacancy was between the terms of Antonin Scalia and Neil Gorsuch at 419 days, and the shortest was between the terms of Charles Evans Whittaker and Byron White at 13 days.

The committee vote follows four days of hearings, which took place from March 21-24. The hearings involved a statement from Jackson, interviews with witnesses testifying for and against the nomination, and questions from senators regarding the nominee’s experience, past judgments, and judicial philosophy. Topics discussed by the senators included abortion, Jackson’s approach to sentencing, LGBT issues, and the Supreme Court’s use of emergency orders, among others. To read more about the confirmation hearings, click here.

Biden announced he would nominate Jackson to replace Breyer on Feb. 25. The Senate formally received the nomination on Feb. 28. Jackson currently serves as a judge on the United States Court of Appeals for the District of Columbia Circuit. Biden nominated her to that post in April 2021, and the Senate confirmed her with a 53-44 Senate vote on June 14, 2021. Three Republicans, Sens. Susan Collins (R-Maine), Lindsey Graham (R-S.C.), and Lisa Murkowski (R-Alaska), voted to confirm Jackson.

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Ketanji Brown Jackson’s Supreme Court confirmation hearings to begin March 21

The Senate Judiciary Committee will hold its first day of confirmation hearings for United States Supreme Court nominee Ketanji Brown Jackson on March 21, 2022. Hearings typically involve a statement from the nominee, interviews with witnesses testifying for or against the nomination, and questions from Senators regarding the nominee’s experience, past judgments, and judicial philosophy.

After the hearings take place, the Judiciary Committee will vote on whether to advance her nomination. The committee’s current membership consists of 11 Democrats and 11 Republicans. If approved, her nomination will then be put up to a confirmation vote before the full Senate. Her confirmation vote can take place before retiring Justice Stephen Breyer leaves the court, with her swearing-in delayed until his departure.

The average length of a Supreme Court vacancy since 1962, when measured from the retirement announcement to confirmation of a successor, is 132 days. The longest vacancy was between the terms of Antonin Scalia and Neil Gorsuch at 419 days, and the shortest was between the terms of Charles Evans Whittaker and Byron White at 13 days.

The last time the Judiciary Committee held hearings for a Supreme Court nominee, Amy Coney Barrett, they lasted from Oct. 12, 2020, through Oct. 15. The committee voted to advance the nomination on Oct. 22, and the full Senate voted on the nomination on Oct. 26. Ruth Bader Ginsburg’s seat was vacant for 38 days before Barrett’s confirmation.

President Joe Biden (D) announced he would nominate Jackson to replace Breyer on Feb. 25, 2022. The Senate formally received the nomination on Feb. 28. Jackson currently serves as a judge on the United States Court of Appeals for the District of Columbia Circuit. Biden nominated her to that post in April 2021, and the Senate confirmed her with a 53-44 Senate vote on June 14, 2021. Three Republicans, Sens. Susan Collins (R-Maine), Lindsey Graham (R-S.C.), and Lisa Murkowski (R-Alaska), voted to confirm Jackson.



SCOTUS releases April argument calendar

The Supreme Court of the United States (SCOTUS) on March 15 released its April argument calendar for the 2021-2022 term, scheduling 10 cases for argument. In total, the court will hear 10 hours of arguments between April 18 and April 27. 

Click the links below to learn more about the cases:

April 18

  • United States v. Washington concerns state workers’ compensation laws and intergovernmental immunity.
  • Siegel v. Fitzgerald concerns the constitutionality of a law imposing different fees on Chapter 11 debtors based on the district in which the bankruptcy is filed.

April 19

  • George v. McDonough concerns whether veterans may challenge decisions from the U.S. Department of Veterans Affairs based on regulations that are found to be in violation of the plain text of governing statutes.
  • Kemp v. United States concerns the Federal Rules of Civil Procedure governing court procedure in civil cases and Supreme Court Rule 13.3.

April 20

  • Vega v. Tekoh concerns Fifth Amendment protections against self-incrimination, specifically related to the Supreme Court’s ruling in Miranda v. Arizona (1966).

April 25

  • Kennedy v. Bremerton School District concerns religious expression at a public school and the Constitution’s establishment clause.
  • Nance v. Ward concerns the procedure under federal law for a convicted inmate to challenge a state’s method of execution.

April 26

  • Biden v. Texas concerns whether federal immigration law requires the Biden administration to keep a program in place that returns certain noncitizens to Mexico during their immigration proceedings because the U.S. Department of Homeland Security lacks the capacity to detain all the inadmissible noncitizens it encounters. The case also concerns what procedures administrative agencies must follow under the Administrative Procedure Act to change federal policies.
  • Shoop v. Twyford concerns the authority of a federal district court to issue a transport order to the warden of a state-run prison for transportation of a state prisoner involved in a federal habeas corpus proceeding.

April 27

  • Oklahoma v. Castro-Huerta concerns state authority in Indian country and the scope of the U.S. Supreme Court’s ruling in the case McGirt v. Oklahoma (2020).

To date, the court has agreed to hear 66 cases during its 2021-2022 term. Four cases were dismissed, and one case was removed from the argument calendar. Unless the court accepts additional cases for argument before its summer recess, the April sitting is the last scheduled sitting of the term.

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SCOTUS issues opinion in case concerning ACCA

The Supreme Court of the United States (SCOTUS) issued a unanimous ruling in the case Wooden v. United States on March 7. The case was argued before the court on Oct. 4. 

The court reversed theSixth Circuit’s ruling and remanded the case for further proceedings, holding that William Wooden’s 10 offenses did not occur on different occasions and count as one prior conviction under theArmed Career Criminal Act (ACCA). Click here for more information about the ruling.

JusticeElena Kagan delivered the majority opinion of the court. Chief JusticeJohn Roberts and JusticesStephen Breyer,Sonia Sotomayor, andBrett Kavanaugh joined the opinion in full. JusticesClarence Thomas,Samuel Alito, andAmy Coney Barrett joined all but Part II-B. Justice Sotomayor filed a concurring opinion. JusticeNeil Gorsuch filed an opinion concurring in the judgment, joined by Justice Sotomayor as to Part II, III, and IV. Justice Kavanaugh filed a concurring opinion. Justice Barrett filed an opinion concurring in part and concurring in the judgment, joined by Justice Thomas.

To date, the court has issued decisions in 14 cases this term. Between 2007 and 2020, SCOTUS released opinions in 1,062 cases, averaging between 70 and 90 cases per year.

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Confirmation votes for SCOTUS justices appointed since 1967

President Joe Biden (D) said that he will name his nominee to replace Justice Stephen Breyer on the United States Supreme Court by the end of February. Whoever the nominee is, they are set to be the first to require confirmation from a United States Senate divided 50-50.

Since 1967, when the U.S. Senate held its first roll call confirmation after Hawaii became the 50th state, the Senate has confirmed 20 individuals to the Supreme Court. Of those, Sandra Day O’Connor received the most yes votes (99), and Brett Kavanaugh received the fewest (50). Amy Coney Barrett is the only justice in that time that was confirmed with yes votes from senators belonging to a single party.

The chart below shows the total number of yes votes each Supreme Court justice received in the U.S. Senate since 1967, divided by senators’ party. Blue represents Democratic votes, red represents Republican votes, and grey represents independent or third party votes.

Overall…

  1. Sandra Day O’Connor (nom. Ronald Reagan (R), 1981) received the most votes (99).
  2. Brett Kavanaugh (nom. Donald Trump (R), 2018) received the fewest votes (50).
  3. John Paul Stevens (nom. Gerald Ford (R), 1975) received the most votes Democratic votes (59).
  4. Amy Coney Barrett (nom. Donald Trump (R), 2020) received the fewest Democratic votes (0).
  5. John Roberts (nom. George W. Bush (R), 2005) received the most Republican votes (55).
  6. Elena Kagan (nom. Barack Obama (D), 2010) received the fewest Republican votes (5).

Among those nominated by Democratic presidents…

  1. Ruth Bader Ginsburg (nom. Bill Clinton, 1993) received the most yes votes (96).
  2. Kagan received the fewest yes votes (63).
  3. Ginsburg received the most Republican votes (41).
  4. Kagan (nom. Obama, 2010) received the fewest Republican votes (5).
  5. Sonia Sotomayor (nom. Obama, 2009) received the most Democratic votes (57).
  6. Thurgood Marshall (nom. Johnson, 1967) received the fewest Democratic votes (37).

Among those nominated by Republican presidents…

  1. O’Connor received the most yes votes (99).
  2. Kavanaugh received the fewest yes votes (50).
  3. Stevens received the most number of Democratic votes (59).
  4. Barrett received the fewest number ofDemocratic votes(0).
  5. Roberts received the most number of Republican votes (55).
  6. Warren Burger (nom. Richard Nixon, 1969) received the fewest Republican votes (36).

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SCOTUS releases March argument calendar

The Supreme Court of the United States (SCOTUS) on Jan. 28 released its March argument calendar for the 2021-2022 term, scheduling nine cases for argument. Two of the cases were consolidated for one hour of oral argument. In total, the court will hear eight hours of arguments between Mar. 21 and Mar. 30. 

Click the links below to learn more about the cases:

Mar. 21

  1. Morgan v. Sundance, Inc. concerns a circuit split regarding arbitration clauses, the Fair Labor Standards Act of 1938 (FLSA), and the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011).
  2. Berger v. North Carolina State Conference of the NAACP concerns whether North Carolina legislators may intervene to defend the state’s voter identification law in constitutional challenges and lawsuits concerning the Voting Rights Act.

Mar. 22

  1. Golan v. Saada concerns the interpretation of international law when a minor child is abducted across national borders during a domestic dispute.

Mar. 23

  1. ZF Automotive US, Inc. v. Luxshare, Ltd. (consolidated with AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States) concerns arbitration proceedings generally and, specifically, U.S. district courts’ authority to compel parties to produce evidentiary details in private arbitration for foreign or international tribunals.

Mar. 28

  1. LeDure v. Union Pacific Railroad Company concerns the meaning of a locomotive being in use for purposes of liability under the Locomotive Inspection Act.
  2. Southwest Airlines v. Saxon concerns the definition of transportation workers for purposes of exemption from the Federal Arbitration Act.

Mar. 29

  1. Torres v. Texas Department of Public Safety concerns the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and sovereign immunity.

Mar. 30

  1. Viking River Cruises, Inc. v. Moriana concerns a potential conflict between federal and state arbitration laws in certain types of arbitration proceedings.

To date, the court has agreed to hear 65 cases during its 2021-2022 term. Four cases were dismissed, and one case was removed from the argument calendar. Nine cases have not yet been scheduled for argument.

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SCOTUS accepts first cases for its 2022-2023 term

The Supreme Court of the United States (SCOTUS) accepted three cases for argument during its October 2022-2023 term on Jan. 24. These are the first cases SCOTUS has granted for its next term scheduled to begin on Oct. 3.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard (consolidated with Students for Fair Admissions, Inc. v. University of North Carolina) concerns the legality of institutions of higher education using race as a factor in admissions decisions. The questions presented to the court in the case are: “1. Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions? 2. Title VI of the Civil Rights Act bans race-based admissions that, if done by a public university, would violate the Equal Protection Clause. Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race neutral alternatives?” The case originated from the U.S. Court of Appeals for the 1st Circuit.

Axon Enterprise, Inc. v. Federal Trade Commission concerns whether federal courts have the authority to review constitutional challenges to the structure of the Federal Trade Commission before plaintiffs raise such challenges during agency adjudication proceedings. The court was asked to consider the following question: “Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to ‘affirm, enforce, modify, or set aside’ the Commission’s cease-and-desist orders.”

Sackett v. Environmental Protection Agency concerns how to interpret the Clean Water Act to decide what land falls within the EPA’s wetland regulatory jurisdiction. The question presented in Sackett asks: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘Waters of the United States’ under the Clean Water Act.”

Both Axon and Sacket came from the U.S. Court of Appeals for the 9th Circuit.

Last week, SCOTUS accepted one additional case for its current term. The court granted Oklahoma v. Castro-Huerta on Jan. 21. The case concerns state authority in Indian Country and the scope of the U.S. Supreme Court’s ruling in the case McGirt v. Oklahoma (2020).

To date, the court has accepted three cases for its 2022-2023 term. The court has agreed to hear 65 cases during its current 2021-2022 term and so far has issued decisions in eight of those cases.

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