Chief Justice John Roberts Jr. at the investiture of Neil Gorsuch in June 15, 2017. Credit: Diego M. Radzinschi / ALM

Justice Anthony Kennedy’s retirement Tuesday ended his duties as circuit justice for the huge and busy U.S. Court of Appeals for the Ninth Circuit. Chief Justice John Roberts Jr. on Wednesday stepped in to fill the gap.

The Ninth Circuit includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Montana, Nevada, Northern Mariana Islands and Washington.

Roberts continues to handle emergency applications and other matters from the Federal Circuit, D.C. Circuit and Fourth Circuit. His new duties involving the Ninth likely will be temporary once the Kennedy vacancy is filled.

President Donald Trump on July 9 nominated Judge Brett Kavanaugh of the D.C. Circuit to fill the Kennedy seat. No date has been set yet for Senate Judiciary Committee hearings on the Kavanaugh nomination.

The high court’s modern authority to assign justices to circuits was included in the Judicial Code of 1911, according to the Federal Judicial Center, the research arm of the federal judiciary. That statute provided that, “Whenever, by reason of death or resignation, no justice is allotted to a circuit, the chief justice may, until a justice is regularly allotted thereto, temporarily assign a justice of another circuit to such circuit.” In 1948, the statute’s language was broadened, providing simply that, “The chief justice may make … allotments in vacation” and that, “A justice may be assigned to more than one circuit, and two or more justices may be assigned to the same circuit.”

Two other justices have more than one circuit assignment: Justice Samuel Alito Jr. is circuit justice for the Third and Fifth circuits; Justice Elena Kagan handles matters from the Sixth and Seventh circuits. The remaining circuit assignments are: Justice Stephen Breyer (First); Justice Ruth Bader Ginsburg (Second); Justice Neil Gorsuch (Eighth); Justice Sonia Sotomayor (Tenth); and Justice Clarence Thomas (Eleventh).

The court returned Wednesday to an eight-justice bench, and will undoubtedly face some applications for emergency injunctions, stays and other matters, with voting rights-related requests a frequent issue.

Whether that is a good or bad scenario would depend on the outcome in the lower court and in the short-handed Supreme Court. And there may possibly be only eight justices who attend the court’s big, end-of-summer conference in September.

Emergency actions are hard to predict, but at least two cases brewing in the appeals courts could produce requests by the parties before a new justice takes his seat.

The Ninth Circuit heard arguments in U.S. Department of Homeland Security v. Regents of the University of California—a challenge involving the Trump administration’s elimination of the DACA program. The justices in February, rejecting the government’s petition for review before judgment, said they assumed the appeals court would move “expeditiously” to decide the case. The losing party is likely to go immediately to the Supreme Court.

And there’s the Clean Power Plan still lingering in the D.C. Circuit. Some D.C. Circuit judges’ frustration with holding a challenge to the Clean Power Plan in abeyance—while the Environmental Protection Agency revises it—could send the case back to the Supreme Court. The high court blocked implementation of the plan until the legal challenge was decided by the D.C. Circuit. Three D.C. Circuit judges recently warned they were unlikely to approve another stay order.



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