Federal judges are announcing future vacancies as an extremely high rate

Last fall, I noted that federal judges were announcing future vacancies a historically low rate ahead of Election Day. I posited several reasons why that might be the case, but recent events suggest it’s attributable to partisan reasons.

Here’s the difference between November 1 future vacancies in a presidential election year, with February 1 future vacancies after the election:

November 1, 2000: 11 - February 1, 2001: 9

November 1, 2004: 23 - February 1, 2005: 17

November 1, 2008: 19 - February 1, 2009: 10

November 1, 2012: 19 - February 1, 2013: 19

November 1, 2016: 17 - February 1, 2017: 13

November 1, 2020: 2 - February 1, 2021: 15

That 2021 figure is deceptively low. Another 5 federal judges announced their intention to go senior in the first week of February. Several others took senior status since January 20.

(Maybe unsurprisingly, some judges announce a year-end plan to retire (12/31 or 1/1), which occurs between Election Day and a new presidential administration. I think that’s why a number of announced future vacancies convert to actual vacancies.)

I’m sure there’s more precise ways of examining these figures going forward, and it’ll take some time for the full effects to shake out. But we’re witnessing an extremely high rate of announcements from federal judges, timed to a new presidential administration and razor-thin co-partisan control of the Senate.

"Texas v. Pennsylvania Would Have Upended the Electoral College"

Over at Law and Liberty, I have this post, “Texas v. Pennsylvania Would Have Upended the Electoral College.” It begins:

The Electoral College is a designedly decentralized process for the selection of the President of the United States. Each State may choose its presidential electors in the manner that the legislature deems appropriate.

The State of Texas, in Texas v. Pennsylvania, sought to upend this system in advance of one end: get the Supreme Court to do something, anything, to prevent President-Elect Joe Biden from taking office.

Parsing the holdings in Texas v. Pennsylvania

There’s already been a lot written about the Court’s brief statement in Texas v. Pennsylvania, but I thought I’d offer my sense of the holdings. Here’s the Court’s order issued December 11, 2020:

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

Texas filed three motions: a motion for leave to file a bill of complaint; a motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay; and a motion for “expedited consideration of the motion for leave to file a bill of complaint and for expedition of any plenary consideration of the matter on the pleadings if plaintiffs’ forthcoming motion for interim relief is not granted.”

The Court, I think, had four holdings:

First, does 28 U.S.C. § 1251(a) allow the Court to decline a motion for leave to file a bill of complaint in an “original and exclusive jurisdiction” case? The Court divided 7*-2 on this issue in concluding that yes, it can decline. And it’s not a surprise, as I told a reporter last week: Justices Clarence Thomas and Samuel Alito have repeatedly in other cases argued that the Court may not decline the motion.

Second, if the Court is allowed to decline such a motion, should the Court grant the motion for leave to file a bill of complaint? By a 7*-0 vote (an issue Justices Thomas and Alito would not reach), the Court said no, and the Court declined the motion for leave. The Court did not need to give a reason, but here it did—because, the Court noted, Texas lacked standing.

Third, should the Court grant the motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay? By a 9*-0 vote, the Court said no—7* justices because the answer to the Second holding (above) rendered the motion moot, and 2 justices (Thomas and Alito) because of unarticulated reasons (more on this in the closing thoughts below).

Fourth, should the Court grant the motion for expedited consideration, etc.? By at least a 7*-0 vote, the Court said no, as all other motions were “dismissed as moot.” It is not clear whether Justices Thomas and Alito thought so—the separate statement indicates they “would not grant other relief,” but expediting the proceedings is not really a request for “relief.”

One last wrinkle: did Justices Thomas and Alito, in their statement that they “would not grant other relief,” opine on whether they would grant relief requested in the complaint? I don’t think so. Granting the motion for leave to file a bill of complaint would open the process up to the ordinary rules of civil cases, including allowing the defendant States to file an answer, or a Rule 12 motion to dismiss, and so on. (No State filed such a motion.)

It’s possible that this ambiguity should be construed as Justices Thomas and Alito agreeing to grant the the motion, but turning around and sua sponte rejecting the relief sought in the complaint for lack of standing or on the merits (for unarticulated reasons). But the phrase, “I express no view on any other issue” suggests that this isn’t the case.

In closing, that’s how I parse this case at the moment. And I don’t think it tells us really anything about any justices’ thoughts on the merits. But it does suggest that even Justices Thomas and Alito saw no likelihood of success on the merits, as their denial of the motions for preliminary injunction, etc. suggest as much.

*UPDATE: Jon Endean in the comments helpfully points out that because the justices are not on the record, we do not know if all of them agreed. Some may have disagreed but were not on the record about it. So it could be only 5 or 6 justices instead of 7, or it could be 7 or 8 justices instead of 9. And it’s entirely fair to emphasize that the “shadow docket” does not formally record all of the justices’ positions. So my instinct is that if a justice disagreed, she might write separately; but that is not necessarily the case, and so I include the asterisks.

Federal judges are announcing future vacancies at historic lows ahead of Election Day

As President Donald Trump has nominated a number of judges over his four years in office, and as Senator Mitch McConnell has led efforts in the Senate to ensure that those judges are confirmed, judicial vacancies have fallen significantly. But another thing that’s also dropped off—the number of federal judges announcing future vacancies.

We can look at “future judicial vacancies,” reported by the Federal Judicial Conference, to see how many federal judge have future vacancy plans. Some have announced a retirement date or a plan to take senior status; others announce plans to retire or take senior status upon confirmation of a successor; other non-Article III judges have a term that expires on a particular date; and still others have been nominated for a different court, and the vacancy will arise upon their confirmation to that court. Those announcements could be months into the future.

We can track the historic “future vacancies” recorded as of November 1 in an election year (cheating a bit to include October 23, 2020 at the moment, but I’ll update if there’s a change by November 1).

1992: 3

1996: 14

2000: 11

2004: 23

2008: 19

2012: 19

2016: 17

2020: 2

(Edit: my original number, 3, included the vacancy on the Seventh Circuit caused by the (anticipated) elevation of Justice Amy Coney Barrett to the United States Supreme Court. She was elevated before November 1, dropping the total to 2.)

There are a number of possible explanations. It could be over political calculus, as Democratic-appointed judges hold on to their terms to see the outcome of the election, and Republican-appointed judges who wanted to retire already have done so. It could be that there are simply fewer announcements, and more judges simply retire with less public anticipation. Fewer judges are being elevated right now because essentially all the appellate court seats are filled, meaning fewer lower-court vacancies. The Senate in the past may have moved more slowly in an election year when the president was of a different party. Judges feel an increased obligation to remain in place during the pandemic to minimize what’s already a disruptive time. Some judges also announce their retirement contingent on confirmation of a successor, and perhaps those have been filled at higher rates.

In short, I don’t have terrific explanations except to name a bunch of ideas. But the low number of announced future vacancies struck me as noteworthy.

Recent dissental track records in the Ninth Circuit

The “dissental”—an opinion dissenting from the denial of rehearing en banc—is a popular tool in the Ninth Circuit. The circuit is large, and it has historically seen high reversal rates before the United States Supreme Court.

I thought I’d look at recent dissentals in the Ninth Circuit, given the arrival of a number of judges appointed by President Donald Trump, and who joined them.

A few methodology notes. A judge may write a “statement” concerning the denial of rehearing en banc, or an opinion concurring in the denial of rehearing en banc; I include neither in this tally. I do not include those judges who publicly voted in favor of rehearing en banc but did not join the dissental. Only those who joined the (or one of the) dissentals are included.

I track 17 dissentals from January 1, 2019 to August 24, 2020. (UPDATE: Thanks to the astute observation of “@fedjudges” on Twitter, I missed a few the first time around!) Most Trump-appointed judges joined the court after January 1, 2019 (but there are some interesting late 2018 ones I exclude!). I include the dates they assumed office, but it’s not clear when, for instance, how quickly some would begin to participate on en banc votes (or feel comfortable joining a dissental after taking the bench). Those who have retired or taken senior status before today are listed as “others.” If the judge did not join a dissental, it’s in gray; if they did, it’s marked with an “x” and is in orange. I cleared out any shading for opinions released on the day a judge took office or earlier.

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You can click on the image to zoom in. Historically, Judges Conseulo Callahan and Sandra Ikuta have been among the most reliable dissental participants, with some regular voting from Judge Milan Smith, the only three President George W. Bush appointees left active on the Ninth Circuit. Among these fourteen cases with dissentals, there was one dissental joined by Judge Ronald Gould (a President Bill Clinton appointee) and one by Judge John Owens (a President Barack Obama appointee), and no other instances of a Democratic-appointed judge joining a dissental.

The bulk of joining (or writing!) dissentals has come from Trump appointees (with recognition that some judges joined the Ninth Circuit during this window).

Ryan Nelson: 12

Mark Bennett: 10

Dan Collins: 10

Bridget Bade: 9

Dan Bress: 7

Lawrence VanDyke: 6

Kenneth Lee: 5

Patrick Bumatay: 5

Danielle Hunsaker: 1

Eric Miller: 0

Justice Kavanaugh mentions allocation of power over elections in Calvary Chapel dissent

I’m a little late to this (as I’ve been in the midst of a cross-country move!), but I wanted to highlight a passage from Justice Brett Kavanaugh’s dissenting opinion in Calvary Chapel v. Sisolak. The case was about whether regulations opening some businesses but not allowing churches to open were permissible, which I won’t rehash here. But I did want to highlight one portion of his dissenting opinion:

I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

(Emphasis added.) Professor Josh Blackman highlighted that this mention of elections was “not inadvertent.”

This is not a gloss on any notion of the Purcell principle, which says that federal courts should be particularly reluctant to issue orders affecting elections close in time to the election that may result in voter confusion. Earlier this spring in RNC v. DNC, it figured prominently (if disputably).

But those timing-based concerns are different from the recognition that “state and local governments, not the federal courts, have the primary responsibility.” The default power over the times, places, and manner of holding congressional elections is left with the states, unless the federal government chooses to enact legislation on the topic. For state elections, there’s even less for the federal government to do. And while the federal courts have increasingly relied on the Anderson-Burdick framework as a kind of catch-all opportunity for federal review of election rules, some federal courts have begun to push back. Justice Kavanaugh’s inclusion of this phrase suggests a similar reluctance.

A puzzle to consider in Colorado Department of State v. Baca

The two “faithless elector” cases were originally consolidated to be heard together. But Justice Sonia Sotomayor late in the process discovered she knew one of the parties in the Colorado case and withdrew. That may have been a fortuitous act and provided a clean opinion in Chiafalo v. Washington—and the per curiam opinion in Colorado Department of State v. Baca gives us a hint why.

Many have focused on the substantive difference between the Washington and Colorado laws—Washington counts a faithless vote but fines faithless electors; Colorado does not count a faithless vote and replaces a faithless elector.

But there were material procedural differences, too—specifically, multiple material problems with the Colorado plaintiffs’ case in Baca. In Washington, the electors were fined and contested that in state court. Easy injury to provide (a $1000 fine), easy remedy to seek, easy cause of action to raise.

In Colorado, however, plaintiffs faced several challenges. Were their claims moot? Could they sue a state under Section 1983—or, really, could the state waive this argument when sued for damages?

At oral argument in Baca, Justice Stephen Breyer in particular with concerned about these procedural wrinkles in the Colorado case. Justice Samuel Alito and Neil Gorsuch also raised versions of such concerns.

Now, because Justice Sotomayor was recused from Baca, the principal case became Chiafalo, because all nine justices could participate. Eight justices joined Justice Elena Kagan’s opinion; Justice Clarence Thomas concurred in the judgment, which Justice Gorsuch joined in part.

Now, to the entirety of the Court’s per curiam opinion in Baca:

PER CURIAM.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

It is so ordered.

JUSTICE SOTOMAYOR took no part in the decision of this case.

JUSTICE THOMAS concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington, ante, p. ___.

I looked at this opinion a few times wondering what happened. Specifically, what happened to Justice Gorsuch? He agreed with Justice Thomas’s Tenth Amendment argument in Chiafalo. What about here? Is the Tenth Amendment no longer in play?

And then I considered another possibility—as a per curiam opinion, we don’t see the lineup of justices. Some justices may not agree with the outcome but may choose not to note their dissenting opinion. It might be the case that Justice Gorsuch (and perhaps another, like Justice Breyer) didn’t agree to reverse for the reasons stated in Chiafalo. It might be that the procedural wrinkles would have been a reason to reverse, but they opted not to publicize that here and now, saving the issue for another day.

I don’t know. I would, however, resist the urge to call Baca a “unanimous” decision of the Court. It certainly appears unanimous. But there are reasons to think that some of the procedural wrinkles would lead some members of the Court to come out differently if they couldn’t hide behind the per curiam opinion here.

Should district court judges go "Reinhardt" on election laws during the coronavirus pandemic?

That’s the gist of Professor Nicholas Stephanopoulos’s conclusion in a recent University of Chicago Law Review Online piece.

If there’s a saving grace here, it’s the ratio of lower court to Supreme Court activity: about twenty-to-one, so far, in the area of pandemic-related election litigation. The sheer volume of these suits guarantees that the vast majority of them will never be subjected to Supreme Court review. To be sure, the Court will probably decide additional pandemic-related cases—and decide them badly, misapplying sliding-scale scrutiny and furthering its ideological agenda. But as Judge Stephen Reinhardt once said of the Justices, their limited caseload means “[t]hey can’t catch ’em all.” What they don’t catch in the leadup to the November election is likely to be better, legally and democratically, than what they do.

Professor Stephanopoulos believes that the Supreme Court is wrong on law (and on the political consequences) on a variety of election law cases, including the Supreme Court’s recent decision in RNC v. DNC out of Wisconsin. But advocating for district courts to, for lack of a better phrase, “go Reinhardt” on the Supreme Court struck me as particularly notable.

Judges relying on Bostock v. Clayton County to interpret statutes

The Supreme Court’s recent decision in Bostock v. Clayton County, interpreting the language “because of . . . sex” in the Civil Rights Act of 1964, has already yielded extensive debate and discussion, but particularly within politically conservative legal communities, as Justice Neil Gorsuch drafted a majority opinion over the dissenting opinions of Justice Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh.

In part, there is a debate about what “textualism” means and what tools of statutory interpretation are or are not appropriate. In another part, there is a debate over the result, concerning a federal anti-discrimination statute and its application to cases involving sexual orientation and gender identity.

The en banc Fifth Circuit recently issued a brief opinion in Thomas v. Reeves, concluding that a dispute over legislative district maps in 2019 was moot. But the case spawned 50 pages of essentially dicta concerning the proper scope and application of 28 U.S.C. § 2284(a), or the scope of authority for three-judge courts to hear election law cases.

Of note—to me, at least—was some language in Judge Don Willett’s opinion, joined by Judges Jerry Smith, Jennifer Elrod, Kyle Duncan, and Kurt Engelhardt, on statutory interpretation. In doing so, Judge Willett’s opinion pulls quotations from Justice Gorsuch’s opinion in Bostock:

Just this week, the Supreme Court issued a landmark decision, holding that the 56-year-old Civil Rights Act forbids workplace discrimination on the basis of sexual orientation or gender identity. Specifically, the Court declared that “because of sex” encompasses “because of sexual orientation or gender identity.” The latter is not distinct from sex discrimination, but a form of it. Hearteningly, all nine Justices applied textual analysis to Title VII, as we do today with § 2284(a), but, just like us, they reached polar-opposite conclusions. In dissent, Justices Alito and Thomas charged the majority with “disregarding over 50 years of uniform judicial interpretation” and protested that “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.” The Bostock majority did not—indeed, could not—dispute those facts. It just deemed them immaterial, insisting that what matters (all that matters) is the literal text within a statute’s four corners—what it called “Title VII’s plain terms.”

A time traveler from 1964 would doubtless express astonishment that Congress had, unwittingly and unbeknownst to everyone, equated sex discrimination with sexual orientation discrimination (much less with gender identity discrimination)—and that it had done so by adopting a one-word amendment (inserting “sex”) from a representative who was cynically trying to scuttle the entire Civil Rights Act. But the Bostock majority focused on the “broad language” that Congress adopted, not on the ripple effects, however unforeseen, that flowed from it five decades later. The Court thus gave no interpretive weight to the fact that not a single drafter of Title VII in 1964 intended, noticed, or anticipated that “because of ... sex” would cover discrimination against homosexual or transgender persons. The Court remarked that resorting to “expected applications” or only those “foreseen at the time of enactment ... seeks to displace plain meaning of the law in favor of something lying beyond it.” Text is paramount—“only the words on the page constitute the law”—and if those words lead to “unexpected consequences,” so be it.

Settled practices matter not, nor does the “unanimous consensus” among the courts of appeals stretching across a half-century. As the Court put it: “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” In the Bostock majority’s view, language codified by lawmakers is like language coded by programmers. A computer programmer may write faulty code, but the code will perform precisely as written, regardless of what the programmer anticipated. Courts, no less than computers, are bound by what was typed, and also by what was mistyped. What this means for Title VII: “When a new application emerges that is both unexpected and important,” said the Court, it is no answer to “have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.” We are bound by Bostock, whose ascetic interpretive rules for Civil Rights Act cases apply with equal force to Voting Rights Act cases.

Judge Costa’s opinion asserts virtually the same arguments as the Bostock dissenters, appealing to “venerable” understandings, “widely accepted meaning,” and “uniform caselaw.” He labels the State’s § 2284(a) argument “unprecedented,” invoking Justice Scalia’s colorful elephants-hiding-in-mouseholes aphorism. . . .

(Emphasis added.) It’s interesting—to me, at least—that Judge Willett, who was one of the original eleven names on then-candidate Donald Trump’s “list” of Supreme Court nominees—has quickly and readily embraced Justice Gorsuch’s approach in Bostock, and critiqued Judge Gregg Costa for adopting the approach (as he saw it) of Justices Thomas, Alito, and Kavanaugh.

It’s also notable, I think, to see who signed onto this interpretation—Trump-nominated Judges Duncan and Engelhardt signed onto it, but Judges James Ho and Andy Oldham (who wrote separately on a different issue) did not. Judge Edith Jones also did not join Judge Willett’s opinion. (Others joined Judge Gregg’s opinion, didn’t participate, or didn’t weigh in.)

Was Justice Gorsuch’s approach in Bostock right? We already have several members of the Fifth Circuit who think so. We’ll see whether Bostock’s approach holds sway over other judges in the years ahead.