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Bold Justice: March 5, 2018

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Bold Justice: Labor Unions to start, First Amendment to finish

The Supreme Court won’t hold arguments until March 19, but it’s busy at work on opinions and orders, and so are we! Let’s go!

We #SCOTUS, so you don’t have to

This week, the Supreme Court published three additional rulings, bringing its total opinion count for the term to 11. All three of the new opinions are in cases argued last November. The cases are Jennings v. Rodriguez, Merit Management Group v. FTI Consulting, and Patchak v. Zinke.

  • In Jennings, the Supreme Court reversed the Ninth Circuit’s interpretation of a federal statute on immigration detention. The Ninth Circuit had concluded that the statute required the government to hold periodic bail hearings for plaintiffs who challenged the government’s determination that they should be deported. In an opinion authored by Justice Samuel Alito, the court ruled 5 -3 that the Ninth Circuit’s interpretation was implausible. Alito wrote that the Ninth Circuit’s application of the doctrine of constitutional avoidance, which courts sometimes use to choose between plausible interpretations of a statute, was inappropriate in this case. Alito concluded that the language of the statute did not provide for any bail hearings for detainees in this situation. However, he noted that on remand, the Ninth Circuit will still have to rule on the merits of the plaintiffs’ constitutional claims--that is, whether a statute that does not provide for any bail hearings during indefinite detention of non-U.S. citizens can pass constitutional muster. Justice Samuel Alito authored the majority opinion, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch.
Justice Clarence Thomas wrote a concurring opinion, joined by Justice Neil Gorsuch. Justice Stephen Breyer wrote a dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Breyer would have used the doctrine of constitutional avoidance in this case because he believed the statute would be unconstitutional if it were not read to provide for bail hearings. Justice Elena Kagan recused herself from the case because the Department of Justice was involved in the case during the time she served as U.S. Attorney General.
  • In Merit Management Group, the Supreme Court unanimously affirmed the Seventh Circuit’s ruling to determine which financial transactions are protected from a bankruptcy trustee’s reach. At issue in the case was provision within the Bankruptcy Code known as the safe harbor provision. The safe harbor provision generally protects legitimate transactions made by, made to, or for the benefit of financial institutions from the reach of the bankruptcy trustee. The question in this case was whether the safe harbor provision also protects transactions where the financial institution merely served as a conduit, rather than as a beneficiary. The Seventh Circuit held that the safe harbor provision did not extend to transactions in which a financial institution merely served as a conduit.
A unanimous Supreme Court agreed. In this case, the court concluded, the contested transaction the trustee sought to reach was “the $16.5 million Valley View-to-Merit transfer...Because the parties do not contend that either Valley View or Merit is a 'financial institution' or other covered entity, the transfer falls outside of the §546(e) safe harbor.”
  • Finally, in Patchak, the Supreme Court ruled 6-3 to affirm the decision of the District of Columbia Circuit in a case about congressional authority. The D.C. Circuit had ruled that Congress acted within its constitutional authority when it passed the Gun Lake Act. In 2001, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians petitioned the Bureau of Indian Affairs for a tract of land known as the Bradley Property to be placed in trust. The Tribe sought to use the land to build and to operate a gaming and entertainment facility. David Patchak, the petitioner, filed a lawsuit alleging the U.S. Department of the Interior lacked the authority to place the land in trust. The U.S. Supreme Court later held that Patchak had standing to bring the lawsuit in court. Subsequent to that decision, Congress passed the Gun Lake Act, which provided that any suit relating to the Bradley Property “shall not be filed or maintained in a Federal court and shall be promptly dismissed.” Patchak filed suit, arguing that Congress’ passage of the act was unconstitutional. The D.C. Circuit ruled that the Act was constitutionally passed.
The court ruled 6 - 3 to uphold the D.C. Circuit’s ruling, but without a majority opinion. Justice Clarence Thomas wrote the plurality opinion of the court, joined by Justices Stephen Breyer, Samuel Alito, and Elena Kagan. The plurality opinion is the opinion joined by the highest number of justices in cases where no opinion is joined by a majority of the justices. Thomas acknowledged that Congress could not pass a law intended to resolve the outcome of one particular case--that, he wrote, would infringe on the authority of the judiciary. But, he concluded, the Gun Lake Act did not direct the outcome of case; rather, it stripped federal courts of the jurisdiction to hear cases relating to the Bradley Property, and it was within Congress’ power to determine the jurisdiction of federal courts. Justice Stephen Breyer wrote a concurring opinion agreeing with the plurality.
Justice Ginsburg concurred in the judgment but wrote separately, joined by Justice Sotomayor. Ginsburg wrote that she believed the case turned on Congress' ability to waive and reinstate sovereign immunity, since Patchak originally filed suit against the government.
Finally, Chief Justice John Roberts dissented from the court’s judgment, joined by Justices Anthony Kennedy and Neil Gorsuch. Roberts believed that Congress had exceeded its authority and infringed on the authority of the judiciary in passing the challenged statute because he believed the statute "dictates the disposition of a single pending case." He continued, "Contrary to the plurality, I would not cede unqualified authority to the Legislature to decide the outcome of such a case. Article III of the Constitution vests that responsibility in the Judiciary alone."

As of publication today, the Supreme Court has agreed to hear arguments in 73 cases so far this term; of those 73, 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. 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 cases by court 3.5.18.png

SCOTUS trivia

You learned in an earlier trivia question (if you didn’t already know) that the Supreme Court originally had only six justices. Your question for the week: Who was the first Chief Justice of the United States Supreme Court?

Choose an answer to find out!


Federal court action

Confirmations

The U.S. Senate confirmed two additional nominees since our last issue:

The Senate has now confirmed 26 of President Trump’s judicial nominees.

Nominations

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

Vacancies

As of publication, there were 148 vacancies in the federal judiciary. Of those 148 vacancies, 82 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 33 judges have announced their intention to leave active judicial status during Trump’s first term. There are 62 pending nominations to life-term, Article III judicial positions. Check out the chart below to see vacancies of four years or more:

Longest vacancies 3.5.18.png

Committee action

The Senate Judiciary Committee met last week on Thursday, March 1, but the Committee did not vote to report any additional nominees for full confirmation votes.

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 Kevin Newsom, a judge on the United States Court of Appeals for the 11th Circuit and a judge you oughta know. He joined the court in 2017 after a nomination from President Donald Trump (R). A native of Birmingham, Alabama, Newsom earned his bachelor's degree, summa cum laude, from Samford University in 1994. He graduated first in his class from Samford University. Newsom earned his J.D. from Harvard Law School, magna cum laude, in 1997.

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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