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Bold Justice: January 29, 2018

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Bold Justice: Recess is upon us

The Supreme Court may be in recess, but we’re here for you! We have new opinions to review plus a slate of new nominations. Strap in!

New opinions are here!

This week, the Supreme Court issued three additional opinions, bringing the term total to a whopping four. In all three new opinions, the court reversed the lower court. One was a 5-4 decision; the other two were unanimous. Here they are:

Artis v. District of Columbia

Presented an important question of timing for litigants who file claims in federal courts only to find federal courts lack jurisdiction to adjudicate those claims. While awaiting a ruling from a federal district court on work-related claims filed against her former employer, Stephanie Artis' three-year statute of limitations period in which to file similar claims in D.C. local courts expired. Artis filed claims against the District of Columbia 59 days after a federal court determined it lacked jurisdiction over some of Artis' claims. Artis claimed that the statute of limitations was tolled, or suspended, pending the outcome of the federal district court under 28 U.S.C. §1367(d). The District countered that 28 U.S.C. §1367(d)'s tolling provision only granted a 30-day grace period in which to refile and that, because Artis exceeded that 30-day grace period, her suit was untimely. Both a local judge and a D.C. appeals court panel sided with the District.

The U.S. Supreme Court reversed the D.C. Circuit in a 5-4 decision, concluding that the statute of limitations was suspended while the federal district case was pending. Justice Ruth Bader Ginsburg delivered the opinion of the court. The court held that the tolling provision suspended the statute of limitations clock while the federal case was pending, giving Artis the remainder of the statute of limitations period plus 30 days to file her claim in a D.C. local court. Examining other statutes and sources, she wrote, "Ordinarily, tolled, in the context of a time prescription like §1367(d), means that the limitations period is suspended (stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off." Justice Neil Gorsuch authored a dissent, which was joined by Justices Kennedy, Thomas, and Alito. He argued that the court’s decision improperly intruded on state authority. He concluded that the majority’s approach “ensures that traditional state law judgments about the appropriate lifespan of state law claims will be routinely displaced—and displaced in favor of nothing more than a fortuity (the time a claim sits in federal court) that bears no rational relationship to any federal interest.”


District of Columbia v. Wesby

A case about probable cause and police officers’ qualified immunity from civil liability. Police officers in Washington, D.C., were directed to a house party at a vacant house in the District. During the investigation, some attendees stated that they had been invited to the house by a woman who claimed to be a legal occupant of the property. That claim was refuted by the lawful homeowner. At a supervisor's direction, the officers arrested the attendees for unlawful entry, a charge that was subsequently changed to disorderly conduct. 16 of those attendees later filed a civil suit against the District and the officers for false arrest and negligent supervision. A federal district court granted summary judgment in part as to the District's and the officers' liability, ruling in favor of the plaintiffs on the false arrest and negligent supervision charges. A divided three-judge panel of the D.C. Circuit upheld the ruling.

In a 9-0 decision, the United States Supreme Court reversed, holding that probable cause supported the arrests and that the officers were entitled to qualified immunity. Justice Thomas wrote the opinion for the court. In his opinion for the court, Thomas concluded that the officers had probable cause to arrest the partygoers. He wrote, “Viewing [the] circumstances as a whole, a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the house.” Thomas also concluded that the officers were entitled to qualified immunity. He noted that, in this case, the officers were entitled to qualified immunity unless "the unlawfulness of their conduct was clearly established at the time.” In this case, he ruled, “Even assuming the officers lacked actual probable cause to arrest the partygoers, the officers are entitled to qualified immunity because they 'reasonably but mistakenly conclude[d] that probable cause [wa]s present.”

Justices Sotomayor and Ginsburg concurred in the court’s judgment but wrote separately. Sotomayor agreed that the officers were entitled to qualified immunity and, because that issue resolved the case, would not have reached the question of probable cause. Ginsburg also concurred in the judgment but wrote separately. She wrote, "This case leads me to question whether this Court, in assessing probable cause, should continue to ignore why police in fact acted." Ginsburg continued, “I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.”

National Association of Manufacturers v. Department of Defense

A case about jurisdiction over challenges to the Clean Water Rule, also called the Waters of the United States Rule. In 2015, the Clean Water Rule was published by the Army Corps of Engineers and the U.S. Environmental Protection Agency. The Clean Water Rule was intended to clarify the boundaries of the waters of the United States, which brought those waters under federal regulatory provisions of the Clean Water Act. Several challenges to the Clean Water Rule were filed in both federal district courts and in federal appeals courts as litigants were unclear as to which courts had jurisdiction. The actions were consolidated before the Sixth Circuit, which held that federal appeals courts had jurisdiction. Two specific subsections of 33 U.S.C. §1369(b)(1), subsections (E) and (F), provide that federal appeals courts may review an action of the EPA administrator "(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title" or "(F) in issuing or denying any permit under section 1342 of this title ..." A divided three-judge panel of the Sixth Circuit held that federal appeals courts had jurisdiction under subsection (F).

In a 9-0 decision authored by Justice Sotomayor, the Supreme Court reversed the Sixth Circuit. Sotomayor concluded, "The [Waters of the United States] Rule falls outside the ambit of §1369(b)(1), and any challenges to the Rule therefore must be filed in federal district courts." As to subparagraph E, Sotomayor rejected the idea that the rule was an effluent limitation within the meaning of the statute and ruled instead that the rule was a definition of the waters covered by the statute. As to subparagraph F, Sotomayor wrote, “The Court declines the Government’s invitation to override Congress’ considered choice by rewriting the words of the statute.” The government had also argued that ruling in favor of district court jurisdiction would create an awkward and inefficient system for adjudication. Sotomayor acknowledged that district court jurisdiction was not the cleanest path available to the drafters of the statute. Nevertheless, she ruled, "Ultimately, the Government’s policy arguments do not obscure what the statutory language makes clear: Subparagraphs (E) and (F) do not grant courts of appeals exclusive jurisdiction to review the WOTUS Rule." There were no concurring opinions.

We #SCOTUS, so you don’t have to

As of publication today, the court has agreed to hear arguments in 67 cases this term; of those 67, the court has heard arguments in 36 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 through April 2018. The court has published its arguments calendar through March, with 13 granted cases still unscheduled. Given the number of unscheduled cases, it’s possible the court will only grant a handful of additional cases this term.

SCOTUS trivia

We track nomination consideration by the Senate Committee on the Judiciary. In order for a nominee to receive a confirmation vote in the Senate, the nominee must first be reported out of the Judiciary Committee by a majority vote of Committee members. The Committee may and often does hold hearings on a nomination, during which senators ask questions of the nominee. Although many of those hearings are not high-profile, hearings on a Supreme Court nominee are closely watched. Your question: Who was the first Supreme Court nominee whose hearing before the Judiciary Committee was televised?

a) Justice Ruth Bader Ginsburg
b) Justice David Souter
c) Justice Anthony Kennedy
d) Justice Sandra Day O’Connor
Choose an answer to find out!

Federal court action

Confirmations

The U.S. Senate did not confirm any additional nominees last week. As of publication, the Senate has confirmed 23 of President Trump’s judicial nominees.

Nominations

President Trump announced 12 new nominations last week:

Vacancies

As of publication, there were 145 vacancies in the federal judiciary out of 870 Article III life-term judicial positions. Of those 145 vacancies, 91 have had no nominee put forth as yet during President Trump’s administration. According to the Administrative Office of U.S. Courts, an additional 27 judges have announced their intention to leave active judicial status during Trump’s first term. Including the newly announced nominations, there are 54 pending judicial nominations. Check out the chart below to see vacancies of four years or more:

Current federal judicial vacancies 1.29.2018.png

Committee action

This week, the Senate Judiciary Committee met to consider two additional judicial nominees.

  • Michael B. Brennan, nominated to a seat on the United States Court of Appeals for the 7th Circuit.
  • Daniel Desmond Domenico, nominated to a seat on the United States District Court for the District of Colorado.

The Committee did not vote to report any additional nominees for a full vote in the Senate. The Committee is not scheduled to meet this week.

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.

Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees.

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 Britt Grant, a justice on the Georgia Supreme Court and a judge you oughta know. Grant was appointed to the court on November 9, 2016, by Republican Governor Nathan Deal. Grant previously served as Georgia solicitor general, a position from which she resigned in order to take the supreme court bench. She received her bachelor's degree from Wake Forest University in 2000 and her J.D. from Stanford Law School in 2004.

Looking ahead

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

  • All quiet! The Supreme Court is in recess and the Judiciary Committee is not scheduled to meet.

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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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