Arguments

The Supreme Court agreed to hear arguments in 74 cases this term. Thirteen cases have not been scheduled for argument. Of those, 12 cases are set to be rescheduled for the October 2020-21 term, which will begin on October 5, 2020. The cases were originally scheduled for oral argument in March and April, but those sessions were postponed due to the coronavirus pandemic. The remaining unscheduled case is Sharp v. Murphy.

Sharp v. Murphy was argued during the 2018 term on November 27, 2018, and came from the U.S. Court of Appeals for the 10th Circuit. After oral arguments, the court announced it would hear arguments on the case again in the 2019-20 term. According to The New York Times' Adam Liptak, that announcement indicated a 4-4 split among the justices. (Justice Neil Gorsuch recused himself because of his previous tenure on the 10th Circuit.)

Sharp v. Murphy asked "whether Oklahoma has jurisdiction to prosecute major crimes that Native Americans commit on the territory that was set aside in the 19th century as a reservation for the Five Civilized Tribes – land that covers the eastern half of Oklahoma, including the city of Tulsa." SCOTUS never scheduled arguments for Sharp v. Murphy in the current term. Instead, the justices agreed to hear another case, McGirt v. Oklahoma, which concerns the same legal issues. Oral arguments for McGirt took place on May 11 and a decision is pending.

Click here to read more about SCOTUS' current term. Click here to read more about SCOTUS' 2020-21 term.

Opinions

SCOTUS has issued opinions on seven cases since our May 11 issue. The court has issued opinions in 38 cases so far this term. 

Click the links below to read more about the specific cases SCOTUS ruled on since May 11:

• May 14

  • Lucky Brand Dungarees v. Marcel Fashion Group was argued on January 13, 2020.
    
    The case: Apparel companies Marcel Fashion Group, Inc. ("Marcel") and Lucky Brand Dungarees, Inc. ("Lucky Brand") filed lawsuits for trademark infringement in 2003, 2005, and 2011. In the 2011 action, Marcel sued Lucky Brand a third time for trademark infringement. The U.S. District Court for the Southern District of New York ruled in favor of Lucky Brand, holding the 2003 lawsuit barred Marcel from suing Lucky Brand.
    
    On appeal, the 2nd Circuit reversed the decision and remanded the case. On remand, Lucky Brand moved to dismiss the suit, arguing a settlement agreement resulting from the 2003 lawsuit prevented Marcel from suing Lucky Brand. Marcel countered that Lucky Brand could not use this argument because Lucky Brand could have pursued this defense in the 2005 litigation but did not. The district court granted Lucky Brand’s motion to dismiss. Marcel appealed again to the 2nd Circuit, which vacated the lower court’s ruling. Lucky Brand appealed to the U.S. Supreme Court, arguing the 2nd Circuit’s decision conflicted with decisions from other circuit courts on similar issues.
    
    The outcome: The court reversed the 2nd Circuit’s judgment and remanded the case. In a unanimous opinion, the court held that Marcel cannot prevent Lucky Brand from raising new defense arguments in the case because the 2003 and 2005 lawsuits challenged different actions involving different trademarks occurring at different times.

• May 18

  • Opati v. Republic of Sudan was argued on February 24, 2020. It concerned the Foreign Sovereign Immunities Act (FSIA) and questioned if the Act prohibited plaintiffs from recovering punitive damages against Sudan for its role in embassy bombings in Kenya and Tanzania in 1998.
    
    The case: From 1991 to 1996, the terrorist group al Qaeda maintained an operations base in Sudan, from which it established terrorist cells in Kenya and Tanzania. Al Qaeda bombed U.S. embassies in Kenya and Tanzania in 1998, killing more than 200 people and injuring thousands. In 2001 and in following years, various plaintiffs sued Sudan, arguing the bombings were "extrajudicial killings" under the FSIA. Sudan denied the allegations.
    
    In 2014, the U.S. District Court for the District of Columbia issued final judgments awarding more than $10.2 billion in punitive damages against Sudan. Sudan appealed the cases. On appeal, the U.S. Court of Appeals for the D.C. Circuit vacated the damages awarded. The Opati plaintiffs appealed to the U.S. Supreme Court, asking it to clarify whether "the FSIA may be applied retroactively to impose punitive damages on a state sponsor of terrorism."
    
    The outcome: The court vacated the D.C. Circuit's decision in an 8-0 ruling. Justice Brett Kavanaugh recused himself from the case because he was a member of the lower court. The court held punitive damages are permissible for federal claims under the FSIA against foreign states for terrorist activities that occurred before the passage of the law's current version.

• June 1

  • Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment was argued on October 15, 2019. It was consolidated with Aurelius Investment v. Puerto Rico, Official Committee of Debtors v. Aurelius Investment, United States v. Aurelius Investment, and UTIER v. Financial Oversight and Management Board for Puerto Rico. It concerned the U.S. Constitution's Appointments Clause.
    
    The case: In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act. The act created the Financial Oversight and Management Board (FOMB) and authorized the board to begin debt adjustment proceedings on behalf of the Puerto Rico government. The seven-member board is made up of one member chosen at the president’s discretion. The president selects the other six members from a Congressionally-approved list.
    
    Aurelius Investment, LLC, ("Aurelius") and the Unión de Trabajadores de la Industria Eléctrica y Riego ("UTIER") challenged the FOMB's authority in U.S. District Court, arguing the board members' appointment violated the Appointments Clause.
    
    Aurelius and the UTIER claimed that the board members are "Officers of the United States"—presidential appointees requiring Senate confirmation. The FOMB argued that because its activities are primarily local in nature its members do not qualify as "Officers of the United States."
    
    The outcome: The court unanimously ruled in favor of the board, holding the Appointments Clause governed the appointment of members of the FOMB but the method of appointment used did not violate its requirements. The case was remanded to the U.S. Court of Appeals for the 1st Circuit for further proceedings. 

  • Nasrallah v. Barr was argued on March 2, 2020. 
    
    The case: Nidal Khalid Nasrallah, a citizen and native of Lebanon, pleaded guilty to two counts of receiving stolen property in interstate commerce. An immigration judge determined the conviction constituted a particularly serious crime, making Nasrallah subject to removal as an alien. However, the judge granted Nasrallah protection from removal under the United Nations Convention Against Torture (CAT).
    
    On appeal, the Board of Immigration Appeals affirmed in part and reversed in part the immigration judge's decision, and ordered Nasrallah's removal. Nasrallah petitioned the U.S. Court of Appeals for the 11th Circuit for review. The 11th Circuit denied in part and dismissed in part the petition, holding that it lacked jurisdiction under 8 U.S. Code § 1252(a)(2)(C).
    
    The outcome: In a 7-2 ruling, the court reversed the 11th Circuit's decision, holding that Sections 1252(a)(2)(C) and (D) do not prevent judicial review of a noncitizen’s factual challenges to an order denying relief under the CAT.
    
    Justice Kavanaugh wrote the majority opinion. Justice Clarence Thomas dissented, joined by Justice Samuel Alito.
     
  • Banister v. Davis was argued on December 4, 2019.
    
    The case: A jury convicted Gregory Banister of aggravated assault with a deadly weapon in 2004. After several appeals, Banister filed a petition under Rule 59(e) of the Federal Rule of Civil Procedure, asking the U.S. District Court for the Northern District of Texas to revisit an earlier judgment. The district court denied the petition.
    
    On appeal, the 5th Circuit also denied Banister's petition for a certificate of appealability, which would have allowed another court to hear an argument that a habeas corpus appeal was wrongfully denied. The 5th Circuit ruled the petition was untimely based on Gonzalez v. Crosby. In that 2005 Supreme Court case, the court considered whether Gonzalez' Rule 60(b) petition counted as a second writ of habeas corpus. The court ruled that it did not.
    
    Banister appealed to the U.S. Supreme Court, arguing there was a circuit split on extending the Gonzalez decision to include Rule 59(e) motions. Banister's petition to the U.S. Supreme Court described the purpose of Rule 59(e) as "to allow the district court to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings." Click here for more information on Rule 59(e).
    
    The outcome: The court reversed and remanded the decision of the 5th Circuit in a 7-2 ruling, holding that because a Rule 59(e) motion to alter or amend a habeas court's judgment is not a second or successive habeas petition under 28 U.S.C. §2244(b), Banister’s appeal was timely.
    
    Justice Elena Kagan wrote for the majority. Justice Alito dissented, joined by Justice Thomas.
     
  • Thole v. U.S. Bank was argued January 13, 2020.
    
    The case: James Thole and Sherry Smith sued U.S. Bank over its management of a defined benefit pension plan. Thole and Smith alleged the bank violated the Employee Retirement Income Security Act of 1974 (ERISA) and engaged in prohibited transactions, causing the plan to become underfunded.
    
    U.S. Bank sought to dismiss the case, arguing the plaintiffs did not have the legal right to sue and the statute of limitations had run out on the ERISA claims. The district court dismissed in part and granted in part U.S. Bank's motion.
    
    In 2014, the plan became overfunded. The district court dismissed the case as moot. Thole and Smith appealed to the 8th Circuit, which affirmed the district court's ruling. The plaintiffs then petitioned the U.S. Supreme Court to review the case, arguing the 8th Circuit's ruling conflicted with other circuit court decisions.
    
    The outcome: The court affirmed the 8th Circuit's decision in a 5-4 ruling, holding the plaintiffs did not have the right to sue and would still receive the same amount of monthly benefits regardless of the case's outcome.
    
    Justice Kavanaugh wrote for the majority, joined by Chief Justice John Roberts and Justices Thomas, Alito, and Neil Gorsuch. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Sotomayor wrote a dissenting opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.
     
  • GE Energy Power Conversion France SAS v. Outokumpu Stainless USA was argued January 21, 2020.
    
    The case: Outokumpu Stainless USA LLC ("Outokumpu") contracted with Fives St. Corp. ("Fives") to provide equipment for its steel plant in Alabama. Fives subcontracted with GE Energy Power Conversion France SAS ("GE Energy"), a foreign corporation, to supply parts for the equipment. The contracts between Outokumpu and Fives and between Fives and GE Energy contained arbitration clauses.
    
    The equipment was installed between 2011 and 2012 but the parts supplied by GE Energy failed by 2015. Outokumpu sued GE Energy in Alabama state court. The case was moved to the U.S. District Court for the Southern District of Alabama, which dismissed the case and compelled Outokumpu to undertake arbitration proceedings.
    
    On appeal, the 11th Circuit reversed the district court's decision to compel arbitration. GE Energy appealed to the U.S. Supreme Court for review, arguing the 11th Circuit's decision underlined a 2-to-2 circuit court split.
    
    The outcome: The court reversed the 11th Circuit's decision in a unanimous ruling, holding the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with doctrines in state law that allow the enforcement of arbitration agreements by nonsignatories to those agreements.

Upcoming SCOTUS dates

Here are the court’s upcoming dates of interest:

• June 11: SCOTUS will conference. A conference is a private meeting of the justices.

• June 15: SCOTUS will release orders.

• June 18: SCOTUS will conference.

The Federal Vacancy Count

The Federal Vacancy Count tracks vacancies, nominations, and confirmations to all United States Article III federal courts in a one-month period. This month's edition includes nominations, confirmations, and vacancies from May 2 to June 2.

Highlights

• Vacancies: There have not been any new judicial vacancies since the April 2020 report. As of June 2, 74 (or 8.5%) of 870 active Article III judicial positions on the courts covered in this report were vacant.
  
  Including the United States Court of Federal Claims and the United States territorial courts, 80 of 890 active federal judicial positions are vacant.

• Nominations: There have been five new nominations since the April 2020 report.

• Confirmations: There have been four new confirmations since the April 2020 report.

Vacancy count for June 2, 2020

New vacancies

No judges left active status, which create Article III vacancies. A presidential nomination is required to fill an Article III vacancy. Nominations are subject to Senate confirmation.

The chart below shows the number of vacancies on the United States Court of Appeals from the inauguration of President Donald Trump (R) on January 20, 2017 to June 1, 2020.

U.S. District Court vacancies

The following map displays U.S. District Court vacancies as of June 1.

New nominations

President Trump has announced five new nominations since the April 2020 report.

• Roderick Young, to the U.S. District Court for the Eastern District of Virginia.

• Toby Crouse, to the U.S. Court for the District of Kansas.

• Edmund LaCour, to the U.S. District Court for the Middle District of Alabama.

• Fred Federici, to the U.S. District Court for the District of New Mexico.

• Brenda Saiz, to the U.S. District Court for the District of New Mexico.

The president has announced 260 Article III judicial nominations since taking office January 20, 2017. The president named 69 judicial nominees in 2017, 92 in 2018, and 77 in 2019. For more information on the president’s judicial nominees, click here.

New confirmations

Between May 2 and June 2, 2020, the Senate confirmed four of the president’s nominees to Article III courts.

• Scott Rash, confirmed to the United States District Court for the District of Arizona.

• Anna Manasco, confirmed to the United States District Court for the Northern District of Alabama.

• John Heil, confirmed to the United States District Courts for the Northern, Eastern, and Western Districts of Oklahoma.

• John L. Badalamenti, confirmed to the United States District Court for the Middle District of Florida.

Between January 2017 and June 2, 2020, the Senate confirmed 197 of President Trump’s judicial nominees—142 district court judges, 51 appeals court judges, two Court of International Trade judges, and two Supreme Court justices.

Need a daily fix of judicial nomination, confirmation, and vacancy information? Click here for continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we also maintain a list of individuals the president has nominated.

We'll be back June 15 with a new edition of Bold Justice, pending SCOTUS opinions.

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