Bold Justice: December 3, 2018

%%subject%%

|  | Alexander Hamilton may have thought them the least dangerous branch, but we at Ballotpedia think federal courts are the most exciting!

Welcome to the December 3 edition of Bold Justice, Ballotpedia's newsletter about SCOTUS and other judicial happenings around the U.S. It's time to deck the halls with judicial news! Follow us on Twitter or subscribe to the Daily Brew for the most up-to-date political information. We'll be back again to celebrate the new year with more SCOTUS news on January 7, 2019.

###
SCOTUS decides Weyerhaeuser Company v. United States Fish and Wildlife Service

SCOTUS has issued opinions on two cases so far this term: Mount Lemmon Fire District v. Guido on November 6 and Weyerhaeuser Company v. United States Fish and Wildlife Service on November 27.

The United States Supreme Court held 8-0 in Weyerhaeuser Company v. United States Fish and Wildlife Service (FWS) to vacate the decision from the United States Court of Appeals for the 5th Circuit.

The case involved FWS' designation of private land in Louisiana as critical habitat for the dusky gopher frog. Landowners challenged the designation, which would have required them to take a variety of actions including replacing existing trees with different species, halting timber management activities, and allowing the land to be managed and populated with frogs. The Fifth Circuit had affirmed the district court's ruling and applied Chevron deference—a principle in which federal courts yield to agency interpretations of the statutes that they administer—to defer to FWS' interpretation of the Endangered Species Act and uphold the critical habitat designation.

The Supreme Court instructed the Fifth Circuit to consider in the first instance whether the FWS' critical habitat designation was arbitrary, capricious, or an abuse of discretion. The court did not address broader questions of judicial deference, including the Fifth Circuit's application of Chevron deference in the case. Though the court held that FWS' action to designate critical habitat was reviewable, it relied on a narrow reading of the relevant statute and did not define the limits of what constitutes discretionary agency actions, which are not subject to judicial review.

A lawyer with the Center for Biological Diversity, an environment-focused interest group, who opposed the ruling, stated, "While we're disappointed, the ruling doesn't weaken the mandate to protect habitat for endangered wildlife.”

An attorney for the Pacific Legal Foundation, a public interest law firm that represents property owners involved in the case, supported the decision, stating, "The nation's hardworking property owners can rest easier tonight knowing government-sponsored land grabs just became a lot more difficult.”

### SCOTUS hears civil asset forfeiture case out of Indiana

The U.S. Supreme Court heard oral arguments last week in Timbs v. Indiana, a civil asset forfeiture case that involves whether the excessive fines clause of the Eighth Amendment to the United States Constitution applies to the states under the Fourteenth Amendment.

Civil asset forfeiture is a process used by law enforcement to seize cars, money, or other property suspected of being the fruit of a crime or used to commit a crime. In many cases, suspects do not have to be convicted of crimes before the property is taken under civil asset forfeiture rules.

The Eighth Amendment to the U.S. Constitution says that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (emphasis added)” Section one of the Fourteenth Amendment says that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

In oral arguments, Justice Neil Gorsuch said, “We all agree that the excessive fines clause is incorporated against the states. … Can we at least agree on that?” Indiana Solicitor General Thomas Fisher counter argued that Eighth Amendment doesn’t bar forfeitures of property, only money.

This case arose when police in Indiana seized Tyson Timbs’ Land Rover, worth over $40,000, after he pleaded guilty to drug charges. According to the Indiana trial court, the vehicle is worth over four times the maximum penalty that Timbs could face in criminal court. The Indiana Supreme Court ruled that the excessive fines clause of the Eighth Amendment did not apply in Indiana and that the police were allowed to seize Timbs’ vehicle. Timbs’ lawyers argue the Fourteenth Amendment incorporated the excessive fines clause of the Eighth Amendment against the states and the seizure of Timbs’ Land Rover was such an excessive fine.

This week, the Supreme Court will hear arguments in five 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). One of the cases is on appeal from the West Virginia Supreme Court of Appeals.

The court has heard 28 cases so far this term. As of publication, it has agreed to hear 57 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:

* December 3

* In Lorenzo v. Securities and Exchange Commission, Francis Lorenzo, the director of investment banking at Charles Vista, LLC, sent emails containing false statements to potential investors and was charged by the Securities and Exchange Commission (SEC) with violating three securities-fraud laws. The U.S. Court of Appeals for the D.C. Circuit agreed with the SEC that Lorenzo had violated two of the laws, but it reversed in regards to the third provision, finding that Lorenzo's boss had ultimate authority over the statements and therefore Lorenzo did not truly make the statements.

The issue: Whether a misstatement claim that does not meet the elements set forth in Janus Capital Group, Inc. v. First Derivative Traders can be repackaged and pursued as a fraudulent scheme claim.

* Dawson v. Steager came on a writ of certiorari to the West Virginia Supreme Court of Appeals. James Dawson retired from the U.S. Marshal Service in 2008. West Virginia allows some state and local retired law enforcement officers to exempt their retirement benefits from the state income tax. Dawson, receiving benefits from the Federal Employee Retirement System, sought to exempt his retirement income from the state income tax. The tax commissioner denied the exemption. The West Virginia Supreme Court of Appeals reversed a lower court's decision, ruling the state's tax on Dawson's retirement income was not in conflict with U.S. law.

The issue: Whether this Court's precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income.

* December 4

* In Biestek v. Berryhill, Michael Biestek stopped working in 2005 due to degenerative disc disease, Hepatitis C, and depression. The Social Security Administration (SSA) denied Biestek's application for Supplemental Security Income and Disability Insurance Benefits in 2010. An administrative law judge found that Biestek was disabled after May 4, 2013, but not before. Biestek appealed, arguing the judge should have complied with his request to require the vocational expert to provide the data that formed the basis of her opinion regarding other work available to Biestek. The Sixth Circuit Court affirmed the lower court's decision, ruling the administrative law judge had not erred in not requiring the vocational expert to produce the data.

The issue: Whether a vocational expert's testimony can constitute substantial evidence of "other work," 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant's request to provide the underlying data on which that testimony is premised.

* In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., Helsinn Healthcare S.A. was the owner of four patents related to the use of palonosetron to treat chemotherapy-induced nausea and vomiting. Prior to the critical date for the on-sale bar, Helsinn signed a supply and purchase contract with MGI Pharma, which was made public but was partly redacted. Helsinn sued Teva Pharmaceuticals USA, Inc. and Teva Pharmaceutical Industries, Ltd. for allegedly infringing on the patents. Teva claimed the patents were invalid under the on-sale bar provision of 35 U.S.C. § 102. Helsinn argued the patents were valid because the actual invention was kept secret although the sale agreement was public.

The issue: Whether, under the Leahy-Smith America Invents Act, an inventor's sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.

* December 5

* In Gamble v. U.S., Terance Martez Gamble was convicted of possession of a firearm by a convicted felon. He appealed, arguing the court was wrong in its ruling that the double jeopardy clause of the Fifth Amendment did not prohibit the federal government from prosecuting him for a crime that the state of Alabama had already prosecuted him for.

The issue: Whether the Court should overrule the "separate sovereigns" exception to the Double Jeopardy Clause.

The Roberts Court started in September 2005 and is ongoing. It began when John Roberts became chief justice of the court. How many associate justices have served during the Roberts Court?

1. 5
2. 9
3. 13
4. 17

Choose an answer to find out!

#### Confirmations

The United States Senate did not confirm any additional nominees since our last issue. The 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).

Here's a look at what pundits are saying about the judiciary during the Trump administration:

"The White House’s relentless focus on remaking the nation’s courts has injected a new and permanent strain of conservatism into the judiciary, seating dozens of Republican judges positioned to play a pivotal role in the most contentious cases of the next four decades."

—Adam Cancryn, Politico

"So far, most Trump nominees have made already conservative appeals courts more so, rather than tipping the ideological balance in courthouses where conservative jurists have been outnumbered."

—Brent Kendall, The Wall Street Journal

"Confirmation proceedings for President Trump’s judicial nominees have partially stalled on Capitol Hill, as outgoing Arizona GOP Sen. Jeff Flake is standing firm in his vow to oppose all Trump nominations until the Senate votes on legislation to protect Special Counsel Robert Mueller’s probe."

—Alex Pappas, Fox News

"Majority Leader Mitch McConnell (R-Ky.) is already teeing up votes for two nominations — Jonathan Kobes to be an 8th Circuit Court judge and Thomas Farr to be a district court judge — for when senators return from their Thanksgiving recess.

And Republicans expect McConnell to barrel through more nominations before Dec. 14, the chamber’s target date to wrap up their work for the year."

—Jordan Carney, The Hill

#### New nominations

President Trump has announced 161 Article III judicial nominations since taking office on January 20, 2017. The president nominated 69 judicial nominees in 2017 and 92 so far in 2018.

#### Vacancies

The federal judiciary currently has 137 vacancies. Of those 137 vacancies, 68 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 69 pending nominations to seats tracked by Ballotpedia’s Federal Vacancy Count.

#### Committee action

The Senate Judiciary Committee did not report any new nominees out of committee since our last issue.

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.

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 grabbing our parkas for a trip to the windy city of Chicago, where we'll get to know the U.S. Court of Appeals for the Seventh Circuit. The Seventh Circuit has jurisdiction over the seven U.S. district courts in Illinois, Indiana, and Wisconsin.

The Seventh Circuit has 11 authorized judgeships. Nine of the court's 11 current judges were appointed by Republican presidents. There are no vacancies.

Since 2007, SCOTUS reversed 28 decisions of 45 cases from the Seventh Circuit, a rate of 62.2 percent.

We'll be back with a new edition of Bold Justice on January 7, 2019. Until then, happy holidays!

## Contents

* 1 Why subscribe to Bold Justice?
* 2 Archive
* 2.1 2021
* 2.2 2020
* 2.3 2019
* 2.4 2018
* 2.5 2017
* 2.6 Why Bold Justice?

### Why subscribe to Bold Justice?[edit]

Stay on top of the whirlwind world of the federal judiciary

Email *

First Name

Please complete the Captcha above

Need to stay on top of the whirlwind world of the federal judiciary of the United States?

Join us, counsel, as we lay the foundation for what happened this week in the world of federal courts. Our record will reflect the cases SCOTUS heard, which judges retired, which were nominated, and what important rulings come out of other federal courts. Call us as your next witness and get the most in-depth coverage of federal courts available to your inbox. Subscribe for free today.

Ballotpedia has been providing new areas of coverage, performing in-depth analyses, and developing new tools to help keep our readers in the know since 2006. This is one more resource to keep you informed—one that can be delivered to your inbox once a week.

## Archive[edit]

### 2021[edit]

* Bold Justice: November 1, 2021
* Bold Justice: October 12, 2021
* Bold Justice: October 4, 2021
* Bold Justice: September 13, 2021
* Bold Justice: August 9, 2021
* Bold Justice: July 19, 2021
* Bold Justice: July 12, 2021
* Bold Justice: June 7, 2021
* Bold Justice: May 10, 2021
* Bold Justice: May 3, 2021
* Bold Justice: April 26, 2021
* Bold Justice: April 19, 2021
* Bold Justice: April 12, 2021
* Bold Justice: March 29, 2021
* Bold Justice: March 22, 2021
* Bold Justice: March 8, 2021
* Bold Justice: March 1, 2021
* Bold Justice: February 22, 2021
* Bold Justice: February 8, 2021
* Bold Justice: January 18, 2021
* Bold Justice: January 11, 2021

### 2020[edit]

* Bold Justice: December 7, 2020
* Bold Justice: November 9, 2020
* Bold Justice: November 2, 2020
* Bold Justice: October 12, 2020
* Bold Justice: October 5, 2020
* Bold Justice: September 30, 2020
* Bold Justice: September 14, 2020
* Bold Justice: August 10, 2020
* Bold Justice: August 3, 2020
* Bold Justice: July 13, 2020
* Bold Justice: June 29, 2020
* Bold Justice: June 22, 2020
* Bold Justice: June 8, 2020
* Bold Justice: May 11, 2020
* Bold Justice: May 4, 2020
* Bold Justice: April 6, 2020
* Bold Justice: March 23, 2020
* Bold Justice: March 9, 2020
* Bold Justice: March 2, 2020
* Bold Justice: February 24, 2020
* Bold Justice: February 10, 2020
* Bold Justice: January 20, 2020
* Bold Justice: January 13, 2020

### 2019[edit]

* Bold Justice: December 9, 2019
* Bold Justice: December 2, 2019
* Bold Justice: November 12, 2019
* Bold Justice: November 4, 2019
* Bold Justice: October 14, 2019
* Bold Justice: October 7, 2019
* Bold Justice: September 9, 2019
* Bold Justice: August 5, 2019
* Bold Justice: July 1, 2019
* Bold Justice: June 17, 2019
* Bold Justice: June 3, 2019
* Bold Justice: May 20, 2019
* Bold Justice: May 6, 2019
* Bold Justice: April 29, 2019
* Bold Justice: April 22, 2019
* Bold Justice: April 15, 2019
* Bold Justice: April 1, 2019
* Bold Justice: March 25, 2019
* Bold Justice: March 18, 2019
* Bold Justice: February 25, 2019
* Bold Justice: February 18, 2019
* Bold Justice: January 21, 2019
* Bold Justice: January 14, 2019
* Bold Justice: January 7, 2019

### 2018[edit]

* Bold Justice: November 26, 2018
* Bold Justice: November 5, 2018
* Bold Justice: October 29, 2018
* Bold Justice: October 8, 2018
* Bold Justice: October 1, 2018
* Bold Justice: September 6, 2018
* Bold Justice: August 6, 2018
* Bold Justice: July 2, 2018
* Bold Justice: June 25, 2018
* Bold Justice: June 18, 2018
* Bold Justice: June 11, 2018
* Bold Justice: June 4, 2018
* Bold Justice: May 21, 2018
* Bold Justice: May 14, 2018
* Bold Justice: May 7, 2018
* Bold Justice: April 30, 2018
* Bold Justice: April 23, 2018
* Bold Justice: April 16, 2018
* Bold Justice: April 9, 2018
* Bold Justice: April 2, 2018
* Bold Justice: March 26, 2018
* Bold Justice: March 19, 2018
* Bold Justice: March 12, 2018
* Bold Justice: March 5, 2018
* Bold Justice: February 12, 2018
* Bold Justice: January 29, 2018
* Bold Justice: January 22, 2018
* Bold Justice: January 15, 2018
* Bold Justice: January 8, 2018

### 2017[edit]

* Bold Justice: December 18, 2017
* Bold Justice: December 11, 2017
* Bold Justice: December 4, 2017
* Bold Justice: November 27, 2017
* Bold Justice: November 20, 2017
* Bold Justice: November 13, 2017
* Bold Justice: November 6, 2017
* Bold Justice: October 30, 2017

### Why Bold Justice?[edit]

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!

v • e

Ballotpedia coverage by project

Federal|

U.S. President • Executive Branch • Legislative Branch • U.S. Senate • U.S. House • Judicial Branch • SCOTUS

State|

State Executive Officials • State Legislatures • State Courts • State Ballot Measures • Recalls

Local|

Municipal Government • School Boards • Local Courts • Local Ballot Measures • Recalls • Expanded local election coverage

Policy|

Administrative State • Budgets • Civil liberties • Education • Elections • Energy • Environment • Finance • Healthcare • Immigration • Pensions

News|

The Daily Brew • Ballotpedia's Polling Indexes • Scott Rasmussen's Number of the Day

Indexes|

Index of Contents • Index of Terms