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Welcome to the March 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.

Hark! Might that be spring on the horizon? Let’s keep a good thought on that and in the meantime turn our attention to the Supreme Court, where the court’s first cases for its upcoming October Term have appeared.

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The Supreme Court will finish its February sitting this week and is scheduled to begin its next sitting on March 22. To date, each of the 2020-2021 term’s sittings have been conducted via teleconference with live audio, based on public health guidance in response to COVID-19.

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

March 1

In the consolidated cases United States v. Arthrex Inc. (Smith & Nephew Inc. v. Arthrex Inc. and Arthrex Inc. v. Smith & Nephew Inc.), the court is considering whether agency department heads may appoint administrative patent judges, or if the Constitution requires presidents to appoint them and the U.S. Senate to confirm them.

Arthrex, Inc., challenged the validity of the appointments of the administrative patent judges (APJs) who ruled against it in a patent dispute. The Federal Circuit ruled in favor of Arthrex on appeal, holding that APJs were principal officers of the United States and that the Secretary of Commerce’s judicial appointments violated the Appointments Clause of the U.S. Constitution. To resolve the constitutional issue, the Federal Circuit severed the APJs removal protections in order to make them inferior officers, making it easier for the Director of the U.S. Patent and Trademark Office to fire them. The U.S. government appealed the decision to the U.S. Supreme Court, arguing the Federal Circuit was wrong about the APJs' status as principal officers, and that the court should not have severed the removal protections.

The questions presented: “1. Whether ... administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head.

“2. Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges."

Note: Wolf v. Innovation Law Lab was removed from the argument calendar after the court granted the Biden administration’s request to do so, which cited policy changes put into effect following the presidential transition.

March 2

Brnovich v. Democratic National Committee (Consolidated with Arizona Republican Party v. Democratic National Committee) concerns voting policies in Arizona and Section 2 of the Voting Rights Act. The cases originated from the U.S. Court of Appeals for the 9th Circuit.

In 2016, several arms of the Democratic Party (“DNC”) sued Arizona, claiming its out-of-precinct policy and ballot-collection law violated Section 2 of the Voting Rights Act.

According to the petition filed in the case, Arizona's out-of-precinct policy means that ballots cast in person on Election Day outside voters’ assigned precincts are not counted. Arizona’s ballot-collection law prohibits a person other than the voter, a family member, the U.S. Postal Service, or election officials, from handling absentee or mail-in ballots.

The U.S. District Court denied the DNC's petition, which a divided panel of the 9th Circuit affirmed, or upheld. In a rehearing, the 9th Circuit granted a preliminary injunction, which the U.S. Supreme Court stayed the next day.

In October 2017, the district court held a trial on the merits, ultimately ruling in Arizona’s favor. On appeal, a divided 9th Circuit panel affirmed the district court's ruling. In a rehearing, the 9th Circuit reversed the panel's decision. Arizona Attorney General Mark Brnovich (R), in his official capacity, and the Arizona Republican Party, appealed to the U.S. Supreme Court.

The questions presented: "1. Does Arizona's out-of-precinct policy violate Section 2 of the Voting Rights Act?

“2. Does Arizona's ballot-collection law violate Section 2 of the Voting Rights Act or the Fifteenth Amendment?"

March 3

Carr v. Saul (Consolidated with Davis v. Saul) concerns whether the Social Security Administration’s (SSA) denial of Social Security disability benefits prevents claimants from challenging the appointment of SSA administrative law judges (ALJs) in court if they do not first present appointment clause challenges during agency proceedings. The cases originated from the U.S. Court of Appeals for the 10th Circuit.

Willie Carr was denied Social Security disability benefits and lost his appeals before the Social Security Administration (SSA). While his appeal was pending in federal court, the U.S. Supreme Court decided Lucia v. SEC, in which the court held that SEC ALJs were improperly appointed. Carr added the Lucia decision to his appeal that the SSA ALJ who decided his benefits case was improperly appointed. The U.S. District Court for the Northern District of Oklahoma ruled in Carr's favor, but the 10th Circuit reversed the ruling, holding that Carr needed to make his Appointments Clause challenge during proceedings at the SSA and could not raise the issue for the first time in federal court.

The question presented: “Whether claimants seeking disability benefits under the Social Security Act must exhaust Appointments Clause challenges before the Administrative Law Judge as a prerequisite to obtaining judicial review.”

Click the following links to preview the cases on the docket for the court’s March sitting:

March 22-24

March 29-31

Azar v. Gresham (Consolidated with Arkansas v. Gresham)
Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System
TransUnion LLC v. Ramirez
National Collegiate Athletic Association v. Alston (Consolidated with American Athletic Conference v. Alston

SCOTUS has agreed to hear 62 cases during its 2020-2021 term. Twelve of those were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. Click here to read more about SCOTUS’ current term.

In its 2019-2020 term, SCOTUS heard arguments in 61 cases. Click here to read more about SCOTUS’ previous term.

Grants

SCOTUS accepted five cases since our February 22 issue, the first cases to be granted review for the court’s 2021-2022 term.

American Medical Association v. Cochran (Consolidated with Oregon v. Cochran and Cochran v. Mayor and City Council of Baltimore) involves judicial review of administrative agency action and whether that action fails the arbitrary-or-capricious test derived from the Administrative Procedure Act (APA).

The cases concerns a 2019 U.S. Department of Health and Human Services (HHS) rule that placed more abortion-related restrictions on healthcare providers receiving federal funds under Title X of the Public Health Service Act. The American Medical Association (AMA), other Title X providers, and several states sued, arguing that HHS violated the APA by issuing the rule.

After the cases made their way through the federal court system, the U.S. Court of Appeals for the 9th Circuit upheld the HHS rule while the U.S. Court of Appeals for the 4th Circuit held that the HHS rule was invalid. Parties on both sides of the dispute appealed to the U.S. Supreme Court to resolve the disagreement. Click here to learn more about the case's background.

Department of Homeland Security v. New York involves judicial review of administrative agency decision making and who has standing–the legal authority to challenge agency actions in federal court.

At issue is whether the U.S. Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) and federal immigration law when it issued its 2019 final rule that expanded the definition of who qualifies as a public charge–a category of people inadmissible to the United States.

The case originated from the U.S. Court of Appeals for the 2nd Circuit. The court ruled against DHS and held that the agency likely violated federal law and the APA. DHS appealed to the U.S. Supreme Court, arguing that it had the legal authority to make a public charge rule and those challenging the rule lacked standing. Click here to learn more about the case’s background.

Wooden v. United States concerns the Fourth Amendment to the United States 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.

In November 2015, Monroe County, Tennessee, Sheriff's Department plainclothes investigator Conway Mason approached William Wooden and Janet Harris' residence as part of a search for fugitive Ben Harrelson. Mason asked to enter the home to stay warm. Wooden allowed him entry while he went to find Harris. Wooden retrieved a firearm in the hallway. Mason knew Wooden had previously been convicted of felony offenses. Officers advised Wooden to put down the weapon, and he complied. Officers then confiscated the firearm, searched the home, and discovered two more guns along with ammunition.

In U.S. district court, Wooden was charged with being a felon in possession of firearms. Wooden requested the evidence discovered during the search be excluded from trial because the officers entered his home without a warrant and without his consent in violation of the Fourth Amendment. The Eastern District of Tennessee rejected his motions.

At sentencing, Wooden was charged under the ACCA due to his previous felony convictions. Wooden argued his previous convictions were not predicate offenses under the ACCA. The district court disagreed and on appeal, the U.S. Court of Appeals for the 6th Circuit affirmed the lower court's ruling. Click here to learn more about the case's background.

Opinions

SCOTUS issued one opinion since our February 22 issue. The court has issued 16 opinions in cases so far this term. Four cases were decided without argument.

February 25

The court issued an opinion in the case Brownback v. King, which concerned the judgment bar of the Federal Tort Claims Act (FTCA). The case originated from the U.S. Court of Appeals for the 6th Circuit and was argued before SCOTUS on November 9, 2020.

In 2014, James King violently resisted arrest after being stopped by FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen. King was tried and acquitted of charges of assault with intent to do great bodily harm, aggravated assault of a police officer, and resisting arrest. He then sued the United States under the FTCA and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The U.S. District Court for the Western District of Michigan held that Brownback and Allen had not violated King's constitutional rights under Bivens. The district court also denied King's FTCA claims. On appeal, the 6th U.S. Circuit Court of Appeals reversed the district court's ruling, holding that the plaintiff’s FTCA claims did not trigger the judgment bar and that King could sue.

On appeal, Brownback and Allen presented the following questions to the U.S. Supreme Court:

"Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1), on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.”

In a unanimous ruling, the U.S. Supreme Court reversed the 6th Circuit's ruling and held that the Western District of Michigan's order in the case was a judgment based on the merits, triggering the judgment bar and disqualifying the plaintiff’s claims against the federal officers.

Justice Clarence Thomas delivered the majority opinion of the court and Justice Sonia Sotomayor filed a concurring opinion. Justice Thomas has authored two majority opinions so far this term.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

March 1:
- SCOTUS will release orders.
- SCOTUS will hear arguments in three cases.
March 2: SCOTUS will hear arguments in two cases.
March 3: SCOTUS will hear arguments in two cases.
March 5: SCOTUS will conference. A conference is a private meeting of the justices.
March 8: SCOTUS will release orders.

Where did the Supreme Court first assemble?

a) The Library of Congress in Washington, D.C.
b) The United States Supreme Court building in Washington, D.C.
c) Avengers Headquarters in upstate New York
d) The Merchants Exchange Building in New York City

Choose an answer to find out!

Nominations and confirmations

President Biden has not yet made any federal judicial nominations during his term.

In comparison to previous presidential administrations, Presidents Donald Trump (R) and George H.W. Bush (R) made their first Article III judicial appointments by June 1 of the first year of their presidencies. Presidents George W. Bush (R) and Ronald Reagan (R) made their first appointments by August 1, and Presidents Barack Obama (D) and Bill Clinton (D) made their first Article III judicial appointments by October 1 of their first years in office. These figures do not include appointments to the U.S. Supreme Court.

Vacancies

The federal judiciary currently has 63 vacancies. As of publication, there were no pending nominations.

For more information on judicial vacancies during Biden’s term, click here.
Judicial vacancies under the Biden administration

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.

We also maintain a list of individuals nominated by the president.

This edition of Bold Justice continues our journey back in time as we review federal judicial nomination activity during previous presidential administrations. Today, we’re taking a look at President Barack Obama's (D) judicial nominees.

During his two terms in office, President Obama made 334 judicial appointments. Of those appointments, 329 were Article III judges. Among the most notable are Supreme Court justices Sonia Sotomayor and Elena Kagan.

When President Obama assumed office in January 2009, he inherited 54 life-term vacancies out of 871 total Article III judgeships (6.20%), the fourth-highest vacancy percentage since the inauguration of President Ronald Reagan (R) in January 1981.

Of his Article III appointees–not including Supreme Court nominations–Obama appointed 55 judges to the United States Courts of Appeal, 268 judges to U.S. district courts, and four judges to the U.S. Court of International Trade.

We’ll be back on March 8 with a new edition of Bold Justice. Until then, gaveling out!

Contributions

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

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Bold Justice: March 1, 2021

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