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Bold Justice: January 7, 2019

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Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting! Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting!

Ballotpedia's Bold Justice

Welcome to the January 7 edition of Bold Justice, Ballotpedia's newsletter about SCOTUS and other judicial happenings around the U.S. Is keeping up with judicial news part of your New Year's resolution? If so, follow us on Twitter or subscribe to the Daily Brew for the most up-to-date political information. Cheers to 2019!
We #SCOTUS so you don't have to

This week, the Supreme Court will hear arguments in five cases. All of the cases came to the court through its appellate jurisdiction (most of the court’s cases are appeals from federal courts of appeal or state supreme courts). One of the cases is on appeal from the Nevada Supreme Court.

The court has heard 33 cases so far this term. As of publication, it has agreed to hear 59 cases. In its previous term, SCOTUS heard arguments in 69 cases.

Click the links below to read more about the specific cases SCOTUS will hear this week:

January 7

  • In Merck Sharp & Dohme Corp. v. Albrecht, hundreds of lawsuits were consolidated against the drug manufacturer Merck Sharp & Dohme, claiming that the osteoporosis drug Fosamax caused thigh bone fractures and that the FDA-approved label failed to warn about this side effect. A district court dismissed the case, ruling federal law preempted the claims. The circuit court reversed the lower court's ruling.
    • The issue: Whether a state-law failure-to-warn claim is preempted when the Food and Drug Administration rejected the drug manufacturer's proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning.

  • In Obduskey v. McCarthy & Holthus LLP, Dennis Obduskey obtained a loan for a home in 2007, which was serviced by Wells Fargo. He defaulted on the loan in 2009. Foreclosure proceedings were initiated several times over the next six years but were never completed. Wells Fargo hired McCarthy and Holthus, LLP in 2014 to carry out a non-judicial foreclosure on the home. Obduskey filed suit, claiming a violation of the Fair Debt Collection Practices Act (FDCPA). A district court granted Wells Fargo and McCarthy's petition to dismiss the case, and the circuit court affirmed.
    • The issue: Whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings.

January 8

  • In Herrera v. Wyoming, Clayvin Herrera, a member of the Crow Tribe of Indians, was hunting elk on the Crow Reservation. He and other tribal members shot three elk after following the animals out of the Crow Reservation and into the Big Horn National Forest. He was charged with two misdemeanors for hunting without a license and during closed season. Herrera sought to have the charges dismissed, arguing that the 1868 Crow Treaty gave him the right to hunt where and when he did and that the treaty preempted state law.
    • The issue: Whether Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians' 1868 federal treaty right to hunt on the "unoccupied lands of the United States," thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.

  • In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al.,  Fourth Estate Public Benefit Corporation wrote articles for Wall-Street.com. When Wall-Street canceled its license agreement with Fourth Estate, it did not remove all of the content produced by the organization. Fourth Estate then filed a copy infringement lawsuit against Wall-Street. Fourth Estate filed an application to register its infringed copyrights, but the Copyright Office had not registered its claims. The district court dismissed the claim because Fourth Estate did not comply with the registration requirements, and the Eleventh Circuit Court affirmed the lower court’s ruling.
    • The issue: Whether "registration of [a] copyright claim has been made" within the meaning of § 411 (a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the Tenth Circuit and, in the decision below, the Eleventh Circuit have held.

January 9

  • Franchise Tax Board of California v. Hyatt came on a writ of certiorari to the Nevada Supreme Court. In 1993, Gilbert Hyatt was audited by the Franchise Tax Board of California (FTB). Hyatt then sued FTB in Nevada state court for intentional tort and bad faith conduct claims. In 2003, the Supreme Court held that Nevada courts did not have to give FTB full immunity, and Nevada awarded Hyatt over $400 million in damages. In 2016, the Supreme Court heard the case again and limited the amount of damages Nevada courts could award. FTB appealed to the Supreme Court, and the court agreed to hear the case for a third time.
    • The issue: Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into another State's courts without its consent, should be overruled.
SCOTUS trivia

Article III of the U.S. Constitution created and enumerated the powers of the judiciary. An Article III judge serves a life term. Article III judges are appointed by the President of the United States and confirmed by Congress. Which of the following judges is not an Article III judge?

  1. Justices of the U.S. Supreme Court
  2. Judges of the federal district courts
  3. Judges of the U.S. Court of International Trade
  4. Judges of the U.S. Court of Federal Claims

Choose an answer to find out!
Federal Court action

Confirmations

The United States Senate confirmed one additional nominee since our last issue.

  • Jonathan Kobes confirmed to a seat on the U.S. Court of Appeals for the Eighth Circuit, on a recorded vote of 51-50 on December 11, 2018.

    Vice President Mike Pence (R) cast a tie-breaking vote after senators voted 50-50 on the nomination. This was the 12th tie-breaking vote cast by Mike Pence. The tied vote occurred after Sen. Jeff Flake (R-Ariz.) joined Senate Democrats to oppose the nomination. Flake said on November 14 that he would oppose any judicial nominations until the Senate voted on legislation to limit authority to fire special counsels to senior Justice Department officials.

The Senate has now confirmed 85 federal judges—53 district court judges, 30 appeals court judges, and two Supreme Court justices—nominated by President Donald Trump (R).

New nominations

President Trump has announced 161 Article III judicial nominations since taking office on January 20, 2017. The president nominated 69 judicial nominees in 2017 and 92 in 2018.


Vacancies

The federal judiciary currently has 144 vacancies. Of those 144 vacancies, 74 have no nominee. 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. There are 69 pending nominations to seats tracked by Ballotpedia’s Federal Vacancy Count.

Committee action

The Senate Judiciary Committee did not report any new nominees out of committee since our last issue. 

Love judicial nomination, confirmation, and vacancy information? We figured you might. Our monthly Federal Vacancy Count, published on the last Wednesday of every month, monitors all 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 has got you covered with continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we maintain a list of individuals President Trump has nominated.
A court you oughta know

Every issue, we at Ballotpedia highlight a federal court you should know more about. Right now, we’re taking a closer look at the United States courts of appeals, or circuit courts. They are the intermediate appellate courts of the U.S. federal courts. There are 13 U.S. courts of appeals.

In this edition, we're traveling to the Show-Me state, where we'll visit the U.S. Court of Appeals for the Eighth Circuit, headquartered in St. Louis, Missouri. The Eighth Circuit has jurisdiction over the 10 U.S. district courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

The Eighth Circuit has 11 authorized judgeships. Ten of the court's 11 current judges were appointed by Republican presidents. There are no vacancies.

Since 2007, SCOTUS reversed 29 decisions of 38 cases from the Eighth Circuit, a rate of 76.3 percent—the third highest rate after the Sixth Circuit and state courts.
Looking ahead

We'll be back with a new edition of Bold Justice on January 14, 2019.


Why subscribe to Bold Justice?

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Join us, counsel, as we lay the foundation for what happened this week in the world of federal courts. Our record will reflect the cases SCOTUS heard, which judges retired, which were nominated, and what important rulings come out of other federal courts. Call us as your next witness and get the most in-depth coverage of federal courts available to your inbox. Subscribe for free today.

Ballotpedia has been providing new areas of coverage, performing in-depth analyses, and developing new tools to help keep our readers in the know since 2006. This is one more resource to keep you informed—one that can be delivered to your inbox once a week.







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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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