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Bold Justice: March 12, 2018

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Bold Justice: More opinions, more cases

The Supreme Court may not have arguments for another week, but we have new opinions and new grants. Let’s go!

We #SCOTUS, so you don’t have to

This week, the Supreme Court published two additional rulings, bringing its total opinion count for the term to 13. The cases are Texas v. New Mexico and U.S. Bank National Association v. Village at Lakeridge.

  • In Texas v. New Mexico, the Supreme Court ruled that the United States could intervene in a water rights dispute between Texas and New Mexico. The issue in this case was the United States' right to intervene in a dispute between Texas and New Mexico over water rights to the Rio Grande River. The United States Supreme Court has original jurisdiction over disputes between U.S. states, meaning that Texas filed its initial complaint directly with the supreme court, rather than with a federal district court. In 2014, the supreme court granted Texas' request to file a complaint and appointed a Special Master to investigate Texas' claims. That same year, the United States moved to intervene in the case, asserting that the case implicated federal claims. The court granted the United States' motion, and the United States filed its own complaint in the case. New Mexico then moved to dismiss the United States' complaint. On January 9, 2018, the court heard arguments on the United States' right to intervene in the case.
In an opinion authored by Justice Neil Gorsuch, the Supreme Court unanimously ruled that the United States could intervene in Texas’ suit. Justice Gorsuch concluded that four factors supported the United State's right to intervene in the case. First, he wrote, the Compact was tied up other with other commitments and agreements to which the United States was a party. Second, Gorsuch noted, New Mexico had "conceded that the United States plays an integral role in the Compact’s operation." Third, he continued, "a breach of the Compact could jeopardize the federal government’s ability to satisfy its treaty obligations" under a treaty with Mexico. Fourth and finally, he wrote, allowing the United States to intervene did not change the claims at issue, since the United States' claims were the same claims Texas had originally raised. "Taken together," he concluded, "we are persuaded these factors favor allowing the United States to pursue the Compact claims it has pleaded in this original action."
Gorsuch emphasized that the court's decision to allow the United States to intervene in this case "should not be confused for license... [J]ust because Congress enjoys a special role in approving interstate agreements, it does not necessarily follow that the United States has blanket authority to intervene in cases concerning the construction of those agreements."
  • In U.S. Bank National Association v. Village at Lakeridge, the Supreme Court unanimously affirmed the Ninth Circuit’s ruling that appellate courts should apply the clear error standard of review when reviewing a district court’s determination as to whether a person in a bankruptcy case should be considered a non-statutory insider. The case resolved a circuit split. The Third, Seventh, and Tenth Circuits had ruled that the standard should be de novo.
In an opinion authored by Justice Elena Kagan, the Supreme Court unanimously affirmed the ruling of the Ninth Circuit, holding that clear error was the proper standard. To determine the correct standard of review, she began by analyzing the types of findings a district court must make in this kind of case. First, she wrote, a court must apply a legal test. As a question of law, that legal finding is reviewed de novo—without any deference to the lower court's ruling—by an appellate court. Second, a court must "make findings of what we have called 'basic' or 'historical' fact—addressing questions of who did what, when or where, how or why." "By well-settled rule," she continued, "such factual findings are reviewable only for clear error—in other words, with a serious thumb on the scale for the bankruptcy court." After that, the court must determine "whether the historical facts found satisfy the legal test chosen for conferring non-statutory insider status. We here arrive at the so-called 'mixed question' of law and fact at the heart of this case." To determine the standard of review for a mixed question, Kagan wrote, the court must look to whether "it entails primarily legal or factual work."
In the case of non-statutory insider status, she wrote, “about as factual sounding as any mixed question gets.” Because the inquiry was primarily factual, she concluded, the appropriate standard of review was clear error.
Justice Anthony Kennedy concurred in the judgment and in Justice Kagan's opinion but wrote separately. Kennedy expressed some doubts about the legal test for insider status, but clarified that the court did not reach the test itself. Justice Sonia Sotomayor also concurred in the judgment and in Justice Kagan's opinion but wrote separately. Her concurring opinion was joined by Justices Kennedy, Clarence Thomas, and Neil Gorsuch. Like Kennedy, Sotomayor expressed concern over whether the lower courts applied the correct legal test. She wrote, “If that test is not the right one, our holding regarding the standard of review may be for naught.”

The court also added two more cases to its docket, bringing the total number of cases it has agreed to hear to 75, an increase of four cases so far over last term’s total. These are the added cases:

  • Knick v. Township of Scott, Pennsylvania, on appeal from United States Court of Appeals for the Third Circuit.
  • Gundy v. United States, on appeal from the United States Court of Appeals for the 2nd Circuit.

The court has not yet scheduled arguments in either case.

As of publication today, the Supreme Court has agreed to hear arguments in 75 cases so far this term; of those 75, the court has heard arguments in 48 cases. The court will continue to hear arguments in cases this term through April 2018. Although it may continue to consider new appeals, its current number of accepted cases is higher than total number of cases it agreed to hear last term (71). With arguments scheduled through much of April, the court has a limited number of argument days left to fill.

Wondering where the cases are coming from this term? Check out this chart showing the number of appeals from each lower court:

SCOTUS case chart 3.12.18.png

SCOTUS trivia

After last week’s trivia question, you know that John Jay was the first Chief Justice of the United States Supreme Court. Your question for this week: In what case did the Supreme Court issue its first-ever decision?

Choose an answer to find out!


Federal court action

Confirmations

This week, the United States Senate confirmed three more of President Trump's nominees to Article III life-term judicial position. All three were confirmed to federal district court seats.

  • Karen Gren Scholer was confirmed on a recorded vote of 95 - 0 to a seat on the United States District Court for the Northern District of Texas.
  • Tilman E. Self III was confirmed on a recorded vote of 85 - 11 to a seat on the United States District Court for the Middle District of Georgia.
  • Terry A. Doughty was confirmed on a recorded vote of 98 - 0 to the United States District Court for the Western District of Louisiana.

All three will take their seats upon taking their judicial oaths and receiving their judicial commissions. As of publication, the Senate has confirmed 29 of President Trump's nominees on courts tracked in Ballotpedia's Federal Vacancy Count. There are an additional 58 nominees awaiting a Senate confirmation vote.

Nominations

President Trump did not announce any additional nominees since our last issue.

Vacancies

As of publication, there were 146 vacancies in the federal judiciary. Of those 146 vacancies, 94 have no nominee as of yet during President Trump’s administration. According to the Administrative Office of U.S. Courts and other outlets, an additional 32 judges have announced their intention to leave active judicial status during Trump’s first term. There are 57 pending nominations to life-term, Article III judicial positions. Check out the chart below to see vacancies of four years or more:

Longest vacancies 3.12.18.png

Committee action

The Senate Judiciary Committee met last week on Wednesday, March 7, to hear testimony from four nominees:

  • John B. Nalbandian, nominee to the United States Court of Appeals for the 6th Circuit.
  • Kari A. Dooley, nominee to the United States District Court for the District Of Connecticut.
  • Dominic W. Lanza, nominee to the United States District Court for the District of Arizona.
  • Jill Aiko Otake, nominee to the United States District for the District of Hawaii.

The Committee did not report any additional nominees for a confirmation vote in the full Senate. As of publication, the Committee is not scheduled to meet next week to consider any additional nominees.

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 William Pryor, a judge on the United States Court of Appeals for the 11th Circuit and a judge you oughta know. He first joined the court on a recess appointment from former President George W. Bush in 2004 and later received his commission as an Article III judge in 2005. Prior to his appointment, Pryor was the attorney general of Alabama. Born in Mobile, Alabama, Pryor graduated from Northeast Louisiana University with his bachelor's degree in 1984 and from Tulane University Law School with his J.D. in 1987.

Looking ahead

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

  • We expect the U.S. Supreme Court to issue orders and possibly opinions this 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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