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Welcome to the October 29 edition of Bold Justice, Ballotpedia's newsletter about SCOTUS and other judicial happenings around the U.S. Don't miss any tricks or treats while you're preparing for Halloween! Follow us on Twitter or subscribe to the Daily Brew for the most up-to-date political information. |
This week, the Supreme Court will hear arguments in six 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). Two of the cases are on appeal from the U.S. Court of Appeals for the Ninth Circuit.
The court has heard 11 cases so far this term. As of publication, it has agreed to hear 42 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:
October 29
- In Lamps Plus Inc. v. Varela, Frank Varela tried to file a class action complaint against his employer, Lamps Plus, after the company released his personal information in response to a phishing scam. Citing the contract of employment Varela signed, Lamps Plus moved to compel bilateral arbitration. The district court found that the agreement was ambiguous as to class arbitration and allowed the class-wide arbitration to proceed. The Ninth Circuit agreed with the lower court's ruling.
The issue: Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.
- In Henry Schein Inc. v. Archer and White Sales Inc., Archer & White Sales, Inc. filed a lawsuit against Henry Schein, Inc. alleging the company violated the Sherman Antitrust Act and the Texas Free Enterprise and Antitrust Act. The district court held “that the dispute was not arbitrable because the plain language of the arbitration clause expressly excluded suits that involved requests for injunctive relief,” according to Oyez. The Fifth Circuit affirmed the district court’s order denying the motions to compel arbitration.
The issue: Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is "wholly groundless."
October 30
- Washington State Department of Licensing v. Cougar Den Inc. came to the U.S. Supreme Court on appeal from the state of Washington. In 2013, Cougar Den, a fuel wholesaler owned by a member of the Yakama Indian Nation, received a $3.6 million tax bill from the state of Washington. Cougar Den argued that under the Yakama Treaty of 1855 it did not have to pay the tax bill. The treaty allows members of the Yakama Indian Nation "the right, in common with citizens of the United States, to travel upon all public highways." The Washington State Supreme Court agreed with Cougar Den.
The issue: Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.
- In Garza v. Idaho, the Idaho Supreme Court held that Gilberto Garza Jr.’s attorney was allowed to ignore Garza’s request to file appeals. In 2015, Garza signed two plea agreements in which he waived his right to appeal. Garza later asked his attorney to appeal the convictions, but his attorney did not. Garza then filed petitions for post-conviction relief because his attorney did not file the appeals.
The issue: Does the "presumption of prejudice" recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant's plea agreement included an appeal waiver?
October 31
- Frank v. Gaos comes on appeal from the Ninth Circuit. In 2013, Google agreed to pay $5.3 million to six cy pres recipients as part of a class action lawsuit settlement plan. The lawsuit was brought against Google under the Stored Communications Act for giving users’ internet search terms to third party websites. A district court preliminarily approved the settlement plan. In 2014, five individuals, including Thomas Frank, filed objections to the plan. In 2015, a district court approved the settlement.
The issue: Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be "fair, reasonable, and adequate."
- In Jam v. Int'l Finance Corp., Budha Ismael Jam and residents who live in Gujarat, India, brought a suit against the International Finance Corporation (IFC) for damages caused by the construction of a power plant in their community. Jam brought the case to a district court. The court dismissed the case because it found that the IFC was immune from suit. The D.C. Circuit Court upheld the ruling.
The issue: Whether the International Organizations Immunities Act—which affords international organizations the "same immunity" from suit that foreign governments have, 22 U.S.C. § 288a (b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.
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The Supreme Court has agreed to hear 42 cases so far this term. Last term, it agreed to hear 69 cases. How many justices must agree to hear a case before it is accepted before the court?
- One
- Four
- Five
- Nine
Choose an answer to find out! |
Confirmations
The United States Senate confirmed 15 additional nominees since our last issue.
- William M. Ray II, confirmed to a seat on the U.S. District Court for the Northern District of Georgia, on a recorded vote of 54-41.
- Liles Clifton Burke, confirmed to a seat on the U.S. District Court for the Northern District of Alabama, on a recorded vote of 55-40.
- Ryan Douglas Nelson, confirmed to a seat on the U.S. Court of Appeals for the Ninth Circuit, on a recorded vote of 51-44.
- Susan Brnovich, confirmed to a seat on the U.S. District Court for the District of Arizona, by voice vote.
- James Patrick Hanlon, confirmed to a seat on the U.S. District Court for the Southern District of Indiana, by voice vote.
- Mark Saalfield Norris Sr., confirmed to a seat on the U.S. District Court for the Western District of Tennessee, on a recorded vote of 51-44.
- Eli Jeremy Richardson, confirmed to a seat on the U.S. District Court for the Middle District of Tennessee, on a recorded vote of 52-43.
- Jeremy D. Kernodle, confirmed to a seat on the U.S. District Court for the Eastern District of Texas, by voice vote.
- Michael Joseph Juneau, confirmed to a seat on the U.S. District Court for the Western District of Louisiana, on a recorded vote of 54-41.
- Thomas S. Kleeh, confirmed to a seat on the U.S. District Court for the Northern District of West Virginia, on a recorded vote of 65-30.
- Peter J. Phipps, confirmed to a seat on the U.S. District Court for the Western District of Pennsylvania, by voice vote.
- Chad F. Kenney, confirmed to a seat on the U.S. District Court for the Eastern District of Pennsylvania, by voice vote.
- David James Porter, confirmed to a seat on the U.S. Court of Appeals for the Third Circuit, on a recorded vote of 50-45.
- Richard J. Sullivan, confirmed to a seat on the U.S. Court of Appeals for the Second Circuit, on a recorded vote of 79-16.
- Lance E. Walker, confirmed to a seat on the U.S. District Court for the District of Maine, by voice vote.
The U.S. Senate has now confirmed 84 federal judges—53 district court judges, 29 appeals court judges, and two Supreme Court justices—nominated by President Donald Trump (R).
New nominations
President Trump announced 13 new nominations since our last issue.
- Joseph F. Bianco of New York, to the U.S. Court of Appeals for the Second Circuit.
- Michael H. Park of New York, to the U.S. Court of Appeals for the Second Circuit.
- Patrick J. Bumatay of California, to the U.S. Court of Appeals for the Ninth Circuit.
- Daniel P. Collins of California, to the U.S. Court of Appeals for the Ninth Circuit.
- Kenneth Kiyul Lee of California, to the U.S. Court of Appeals for the Ninth Circuit.
- Stanley Blumenfeld of California, to the U.S. District Court for the Central District of California.
- Brian C. Buescher of Nebraska, to the U.S. District Court for the District of Nebraska.
- Clifton L. Corker of Tennessee, to the U.S. District Court for the Eastern District of Tennessee.
- Philip M. Halpern of New York, to the U.S. District Court for the Southern District of New York.
- Thomas Marcelle of New York, to the U.S. District Court for the Northern District of New York.
- Matthew W. McFarland of Ohio, to the U.S. District Court for the Southern District of Ohio.
- Jeremy B. Rosen of California, to the U.S. District Court for the Central District of California.
- Mark C. Scarsi of California, to the U.S. District Court for the Central District of California.
He has announced 178 nominations since taking office on January 20, 2017.
Vacancies
The federal judiciary currently has 132 vacancies. Of those 132 vacancies, 76 have no nominee. According to the Administrative Office of U.S. Courts and other outlets, an additional 22 judges have announced their intention to leave active judicial status during Trump’s first term. There are 56 pending nominations to seats tracked by Ballotpedia’s Federal Vacancy Count.
Committee action
The Senate Judiciary Committee reported eight new nominees out of committee since our last issue. They will now face a confirmation vote in the U.S. Senate:
- Jonathan A. Kobes, nominee for the U.S. Court of Appeals for the Eighth Circuit.
- Kenneth D. Bell, nominee for the U.S. District Court for the Western District of North Carolina.
- Stephanie A. Gallagher, nominee for the U.S. District Court for the District of Maryland.
- Mary S. McElroy, nominee to the U.S. District Court for the District of Rhode Island.
- Carl J. Nichols, nominee for the U.S. District Court for the District of Columbia.
- Martha Maria Pacold, nominee to the U.S. District Court for the Northern District of Illinois.
- Mary M. Rowland, nominee for the U.S. District Court for the Northern District of Illinois.
- Steven C. Seeger, nominee for the U.S. District Court for the Northern District of Illinois.
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.
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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 visiting the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit's headquarters are in Richmond, Virginia. It has jurisdiction over the nine United States district courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Congress established the Fourth Circuit in 1891 with two authorized judgeships. By 1990, the number of authorized judgeships rose to its current number of 15. Eight of the court's 15 current judges were appointed by Democratic presidents. There are no vacancies, but one nomination is pending for the future vacancy of Judge Allyson Kay Duncan.
Since 2007, SCOTUS reversed 24 decisions of 40 cases from the Fourth Circuit, a rate of 60 percent. |
Here’s what we’re looking ahead to:
- SCOTUS is hearing cases this week and will begin its November sitting on November 5.
Join us November 5 for another edition of Bold Justice, where we’ll preview the cases being argued and provide updates on other judicial news. |
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