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Bold Justice: December 11, 2017

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Bold Justice: News and history on a quiet week

The Supreme Court is taking a break from argument sessions until after the New Year, but don’t worry—Bold Justice is still here!

This week, the U.S. Supreme Court isn’t hearing any arguments. Check out other SCOTUS news from around the country and read about a case you oughta know, all the way from 1935. Let’s go!

News around the courts

  • Judge Alex Kozinski on the United States Court of Appeals for the 9th Circuit was accused by six women of sexual misconduct. The Washington Post reported that the women, all of whom previously served as clerks or externs in the Ninth Circuit, alleged that Kozinski had engaged in inappropriate sexual conduct, including making comments with sexual overtones and showing them pornography on his computer. Kozinski responded to the allegations in a statement, saying, "I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.” In 2009, Kozinski was investigated by a judicial panel and admonished for maintaining a public internet server with sexually explicit photos and videos. He issued an apology and no further action was taken. Kozinski was appointed to the appeals court in 1985 by President Ronald Reagan. He served as chief judge of the court from 2007 to 2014.
  • A federal judge in Delaware ruled that the state’s political balancing requirement is unconstitutional. United States District Court for the District of Delaware Magistrate Judge Mary Pat Thynge ruled that the constitutional provision requiring that appellate and general jurisdiction trial courts be balanced politically violated the First Amendment of the U.S. Constitution. In her ruling, Thynge wrote, "Political affiliation is not important to the effective performance of a Delaware judge's duties. A Delaware judge may not participate in political activities, hold any office in a political organization, or allow political affiliation to influence his judgment on the bench." Thynge ruled that the practice of limiting appointees to a specific party restricted government employment based on political affiliation, and thus violated the constitution. Delaware’s current governor, John Carney, Jr., is a Democrat. Delaware judges are chosen by the governor from a list of at least three names compiled by the state’s judicial nominating commission. Delaware’s judicial nominating commission is made up of twelve members, eleven of whom are appointed by the governor. No more than seven members may be registered members of the same political party. Greg Lavelle, Delaware State Senate minority whip, told the Delaware State News that the ruling could allow a sitting governor to primarily appoint aligned party members to judicial vacancies. Delaware has not had a Republican governor since 1992.
    • The ruling was made in a suit filed by James Adams against Gov. John Carney (D). Adams, who was a Democrat before registering as unaffiliated, told the court he had wanted to apply for judgeships in the past but did not because his party affiliation would have automatically disqualified him. At the time of the ruling, a spokesman for Carney said his office was reviewing the decision and what impacts it would have. The state may appeal Thynge’s ruling. If the ruling stands, the political balancing requirement will be voided, and Delaware governors will no longer be required to abide by it.
  • The U.S. Supreme Court declined to review the Texas Supreme Court’s June ruling in Pidgeon v. Turner, a challenge to the city of Houston’s provision of employment benefits to same-sex spouses. The case will now go back to a Texas state district court for further arguments. Two residents of Houston, Texas, filed the suit in 2015, citing sections of city and state law prohibiting the provision of benefits to same-sex couples.While the case was pending, the United States Supreme Court decided Obergefell v. Hodges. In Obergefell, the U.S. Supreme Court ruled that the United States Constitution protected the right to same-sex marriage, invalidating same-sex marriage bans around the country.
    • On June 30, 2017, the Texas Supreme Court sent Pidgeon v. Turner back to the trial court for new arguments and reconsideration in light of the Obergefell decision. However, in its opinion the court stated that it believed "Obergefell did not address and resolve [the] specific issue...whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples." The city of Houston then asked the United States Supreme Court to review the case. Like Masterpiece Cakeshop v. Colorado Civil Rights Commission, Pidgeon is one of a number of cases around the country litigating the reach of the Obergefell case.

A case you oughta know

This week, we’re highlighting a case you oughta know: Panama Refining Co. v. Ryan, decided by the supreme court in 1935. The case is included in Ballotpedia’s Administrative State Project. The administrative state is a phenomenon within the federal government that developed over time as the legislative and judicial branches of government delegated increasing authority to executive agencies. It includes the broad, unspecified compilation of delegated governing authorities that function outside of the traditional system of checks and balances that serve to reign in the authority of the executive, legislative, and judicial branches.

The case

Panama Refining Co. v. Ryan concerned the constitutionality of Section 9(c) of Title I of the National Industrial Recovery Act, which had authorized the President to "prohibit the transportation in interstate and foreign commerce of petroleum" in excess of state quotas, and to publish violators with fines and jail time. The president delegated his power under Section 9(c) to the Secretary of the Interior through a series of executive orders. The Secretary of the Interior then issued regulations that required all petroleum companies to provide monthly statements under oath verifying details of their business practices and to retain all work-related documents for potential inspection by the Department of the Interior, among other requirements.

Two Texas oil companies, Panama Refining Co. and Amazon Petroleum Corp. filed separate lawsuits challenging the Secretary of the Interior's regulations and Section 9(c) of the NIRA. After winning at the district court level, the plaintiffs’ cases were dismissed by the United States court of Appeals for the Fifth Circuit, and both appealed to the supreme court.

On January 7, 1935, the supreme court ruled 8-1 that Section 9(c) of the National Industrial Recovery Act unconstitutionally delegated legislative power to the President, which also rendered the executive orders governing hot oil invalid. Chief Justice Charles E. Hughes wrote the majority opinion and was joined by Justices Willis Van Devanter, James Clark McReynolds, George Sutherland, Louis Brandeis, Pierce Butler, Harlan Fiske Stone, and Owen Roberts. Justice Benjamin Cardozo dissented.

Writing for the court majority, Chief Justice Hughes argued that the allowance or prohibition of transportation of goods was "obviously one of legislative policy," meaning that a delegation of power to the executive branch had occurred. Reviewing the “brief and unambiguous” language of Section 9(c), Hughes concluded, “So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit.” In the absence of limits on the president’s power, Hughes wrote, Section 9(c) “unconstitutionally delegated legislative power to the executive branch.” Hughes emphasized that while delegation remained an important tool for Congress to manage the needs of a modern state, it required clear boundaries and constant monitoring.

Why it matters

The case struck down Section 9(c) of the NIRA, which was a major component of Franklin D. Roosevelt's New Deal. The ruling in A.L.A. Schechter Poultry Corp. v. United States later the same year struck down Section 3 and effectively neutralized the entire act. Both Schechter and Panama were major cases in the development of the nondelegation doctrine and laid the groundwork for many subsequent rulings.


We #SCOTUS, so you don’t have to

The U.S. Supreme Court will not hear arguments in any cases this week. However, late last week it agreed to hear seven new cases. One of the new cases is Benisek v. Lamone, a redistricting case from Maryland challenging a 2011 redistricting plan designed by Democrats in the state. The cases have not yet been scheduled for argument.

As of 9 a.m. Monday, the court has agreed to hear arguments in 55 cases so far this term; of those 55, the court has heard arguments in 22 cases. SCOTUS typically adds more cases throughout the term. In its previous term, SCOTUS heard arguments in 71 cases. The court will continue to hear arguments in cases this term through April of 2018 and will continue to consider new appeals.


SCOTUS trivia

Although presidents often serve as legislators before running for president, many fewer serve as judges first. Your question for the week: Who is the only president to have ever served on the United States Supreme Court? Read on to find the answer below.

Federal court action

Confirmations

Last week, the U.S. Senate did not confirm any additional nominees. As of December 8, the Senate had confirmed 16 of President Trump’s judicial nominees.

Nominations

President Trump did not submit any judicial nominations to the U.S. Senate last week.

Vacancies

As of November 29, 2017, there were 144 vacancies in the federal judiciary out of 870 Article III life-term judicial positions. Of the 144 vacancies, 100 have had no nominee put forth yet. According to the Administrative Office of U.S. Courts and other outlets, an additional 18 judges have announced their intention to leave active judicial status during Trump's first term.

Committee action

The Senate Judiciary Committee is scheduled to conduct nomination hearings for six judicial nominees this week:

Current judicial vacancies

  • 144 judicial vacancies in life-term, Article III judicial positions
  • 44 pending nominations to life-term, Article III judicial positions
  • 18 future vacancies to life-term, Article III judicial positions
    • *This number includes judicial nominees who have been confirmed by the Senate, but have not received their judicial commissions.

Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary.

Or, if you prefer, we maintain a list of individuals nominated by President Trump.

A judge you oughta know

Every week, we at Ballotpedia want to highlight a federal judge or judicial nominee. We’re in our review of President Donald Trump’s list of 25 individuals from which he indicated he would choose nominees to fill Supreme Court vacancies. This week, let’s get to know Keith Blackwell, a justice on the Georgia Supreme Court and a judge you oughta know. Blackwell is one of nine judges on the list who currently serves as a state judge rather than in a federal office. He’s also a graduate of the University of Georgia and began his judicial career on the Georgia Court of Appeals in 2010.

SCOTUS trivia answer

The answer to our SCOTUS trivia question is President William Howard Taft. From 1909 to 1913, Taft served as the President of the United States. Then, in 1921, President Warren Harding nominated Taft as the tenth chief justice of the supreme court. Taft served on the court from 1921 until shortly before his death in 1930. He remains the only president to have served on the U.S. Supreme Court.

Looking ahead

Here’s what we’re looking ahead to this week:

  • We expect the supreme court to issue new orders on Monday.
  • We expect the Senate Judiciary to meet on December 13 to consider six of President Trump’s nominations.

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Why Bold Justice?

Well, there’s a story behind it, and we’re happy to credit Justice Samuel Alito for the inspiration. Back in October of 2014, Justice Alito joined his fellow Supreme Court Yale Law alumni, Justices Clarence Thomas and Sonia Sotomayor, for a panel as part of the law school’s alumni weekend (video below). During the discussion, the moderator asked the audience if they could guess which of the three justices on the panel served as the inspiration for a coffee house to name one of their blends of coffee, Bold Justice. Justice Alito responded, “Obviously, it’s me.”

He went on to tell the story of how, during his days as a Third Circuit judge, his law clerks participated in a Newark, New Jersey, coffee shop’s year-long promotion wherein if customers sampled every blend for one year, the customers could then create and name a blend of coffee. Justice Alito described Bold Justice as a blend that was “designed for about three o’clock in the afternoon if you’re working and you’re starting to fall asleep, if you have this, it will jolt you awake.” A blend of courts and coffee: sounds perfect to us!

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