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Tierney Sneed

Tierney Sneed is a reporter for Talking Points Memo. She previously worked for U.S. News and World Report. She grew up in Florida and attended Georgetown University.

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Justice Anthony Kennedy’s retirement will let President Trump drastically reshape the Supreme Court, and the absence of his crucial swing vote may usher in major changes in the legal landscape on a number of key issues.

Trump has already made it clear that he will pick a Kennedy replacement from a list of 25 potential nominees released by the White House last year. It’s highly unlikely that Kennedy’s successor will be in his tradition of a more moderate, center-right influence on the court’s conservative wing. Rather, it seems more probable that Trump — who will only need Republican votes to get his nominee confirmed in the Senate — will pick a judge in the mold of Neil Gorsuch, his first Supreme Court pick who has emerged as far-right voice on the court.

What does this shift mean for the major questions that make their way to the Supreme Court’s doorstep? A look at the issues where Kennedy wielded major influence:

Abortion Rights

This is the area of law that could be most dramatically remade due to Kennedy’s departure. Kennedy signed on to a number of decisions upholding Roe v. Wade, which said abortion was a constitutional right. Most recently, he voted with the court’s liberals to block states from imposing onerous and unnecessary regulations on abortion clinics which seemed geared at shutting those clinics down.

If Roe v. Wade is not overturned outright, expect it to become much easier for states to impose extreme restrictions on access to abortion. If Roe v. Wade is overturned, then it’s only matter of time that a large swath of states ban the practice.

Remaking this area of jurisprudence is a top priority for conservative activists, many of whom have the ear of the President has he selects his nominee. Trump himself promised on the campaign trail that he would appoint “pro-life” justices.

LGBT Rights

Justice Anthony Kennedy’s majority decision in Obergefell v. Hodges, the case that legalized same-sex marriage nationwide, was perhaps his best known opinion, and he joined the liberals in previous key decisions that advanced LGBT equality.

Even if a post-Kennedy court doesn’t overturn Obergefell, there are other ways it can turn back the clock on LGBT rights. Though Kennedy declined to reject this term outright a baker’s argument that he can discriminate against gay wedding cake seekers, the decision he and six other justices joined was only narrowly in the baker’s favor and did not make a sweeping judgment on whether business are allowed to deny LGBT people services.

The strategy to roll back gay rights has already began to look like the tactics of the anti-abortion movement, with social conservatives employed a “death by a 1,000 cuts” approach of passing state laws allowing certain forms of discrimination against LGBT people. Kennedy’s successor is less likely than him to get in their way.

Separation of Church and State

Kennedy has swung between the liberals and the conservatives when it’s come to cases dealing with the government and religion. He’s provided key votes in decisions limiting school prayer, while siding with religious institutions in other cases involving their relationship with the government.

His replacement may be even less likely to rule in favor of keeping church and state separate, giving religious conservatives a more reliable vote on the court. And they might get their first post-Kennedy victory very soon, as there is a major case that court is considering taking up having to do with legislative prayer.

Prisoner Rights And Criminal Justice

Kennedy had become a voice-to-listen-for on prisoners’ rights, even if he had not be willing to join the liberals who most recently sought to re-examine how states implemented the death penalty. Kennedy wrote an 2008 opinion declaring unconstitutional the use of the death penalty for child rapists not also convicted of murder, and also wrote a 2005 opinion outlawing the use of the death penalty on juveniles.

Additionally, he wrote a 2015 concurrence denouncing solitary confinement, and also provided the pivotal votes in cases having do to with California’s overcrowded prison system that released thousands of prisoners.

It’s not a given that his successor will be opposed to reforms, however incremental, to the criminal justice system; the late Justice Antonin Scalia, for instance, sided at times with criminal defendants in major cases.

But it’s just as likely that Trump nominates someone more aligned with the other conservatives on criminal justice issues.

Partisan Gerrymandering

Voting rights advocates’ hopes that they could, in the near-future, secure a fifth vote to rein in extreme partisan gerrymandering died on Wednesday with Kennedy’s retirement announcement. For years, anti-gerrymandering advocates have sought to bring Kennedy a case that could convince him to join the liberals, after he wrote a 2004 concurrence hinting that, under specific circumstances, he could be comfortable imposing some limits on the practice.

While their attempt this term fell short, when the case was punted on a technicality, a concurrence from Justice Elena Kagan may have provided a path to attracting Kennedy’s vote. Kennedy, on Wednesday, decided not to stick around to let them try.

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Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, the day the court’s term wrapped up.

His retirement was announced in a statement that was made available to Supreme Court reporters.

Kennedy, a Reagan-appointee, had the reputation of being a crucial swing vote on the court. While in the most recent term he sided with the conservatives on the court’s most polarizing cases, in the past he’s provided the liberal wing a decisive fifth vote on cases concerning abortion rights and LGBT rights.

With the Senate in Republican control, President Trump will now have the opportunity to fill Kennedy’s seat with a far more reliable conservative who could potentially serve on the court for decades.

His move to retire stands to drastically reshape the court and take it in a far-right direction, which could have implications lasting for a generation — if not longer.

Beside abortion rights and LGBT rights, Kennedy also showed interest in curbing partisan gerrymandering (though he signed onto a decision punting the issue this term.)

Trump’s first appointee to the court, Justice Neil Gorsuch, has emerged as one of its most far-right members. His administration has prioritized pushing judicial nominees, many of them extremely conservative.

The White House last year released a list of 25 people from which Trump would choose his next Supreme Court nominee. The President told the White House pool on Wednesday that he plans to select his Kennedy replacement from that list and that the process will “begin immediately.”

Kennedy’s retirement, effective July 31, sets the stage for Trump to make a legacy-defining move, and Senate Democrats will have no way of stopping his nominee from being confirmed. Senate Republicans blew up the filibuster for Supreme Court nominees last year, when confirming Gorsuch.

Gorsuch filled the seat left open by the 2016 death of conservative Justice Antonin Scalia. The GOP Senate blocked President Obama from putting his own nominee on the court.

“We will vote to confirm Justice Kennedy’s successor this fall,” Senate Majority Leader Mitch McConnell (R-KY) said from the Senate floor Wednesday.

 

 

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Nearly six months after President Trump, citing growing litigation, dissolved his sketchy voter fraud commission, a federal judge in Washington said Wednesday that certain commission documents should be turned over to one of its commissioners, who sued last year over the panel’s lack of transparency.

U.S. District Judge Colleen Kollar-Kotelly had previously ordered in late December that the commissioner, Maine Secretary of State Matt Dunlap (D), receive the documents, including internal communications, that he was requesting. About two weeks after her order, the commission folded, but the legal fight over his case has continued.

The judge said Wednesday that the commission must turn over the documents that were covered in her Dec. 22 order by July 18. The judge said that she had not “considered line-by-line the documents requested by Plaintiff.” But she pointed to the documents referenced in an index of commission-related communications, which was provided in a separate lawsuit, as an example of what she was expecting to be turned over.

Her order Wednesday gave other examples as well:

“Plaintiff ultimately should receive relevant documents that any of the former commissioners generated or received. This includes material that commissioners solicited and subsequently received from third parties,” the judge said, adding that her order included relevant records generated after the December order.

She said, however, that the commission need not turn over documents “exclusively” concerning management of the commission’s records.

Her order Wednesday denied Dunlap’s request to subpoena the commission’s de facto leader, Kansas Secretary of State Kris Kobach (R), to ensure he had preserved the relevant documents

“The Court is aware that Mr. Kobach’s reputation for candor to the tribunal and compliance with its orders is less than sterling,” Kollar-Kotelly said, pointing to the sanctions and the contempt-of-court finding that arose in the litigation over his proof-of-citizenship voter registration requirement in Kansas.

“But the Court is not prepared to assume that Mr. Kobach would disregard the White House’s requests when other Defendants—and he too, if the Court finds that he remains a Defendant—are at risk of contempt if they irresponsibly lose documents to which the Court finds that Plaintiff was entitled under the December 22, 2017, Order,” she said. “Should it come to light that Mr. Kobach has Commission documents that he has not provided to other Defendants, and that other Defendants do not have their own copies of such documents, then Plaintiff may seek further relief from this Court as appropriate.”

Read her opinion below:

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Justice Elena Kagan issued a blistering dissent Wednesday that argued that the Supreme Court’s conservative majority — in a union fees case, as well as other recent decisions — was “weaponizing the First Amendment.”

“Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last,” Kagan warned in the dissent, where she was joined by the three other liberal justices.

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Special counsel Robert Mueller got a major court victory Tuesday when a federal judge in Virginia on Tuesday declined to dismiss the charges Mueller had brought against Paul Manafort — but not without the judge taking multiple swipes at Mueller, the regulations concerning his appointment, and the very notion of a special counsel.

In a series of asides, commentaries, extended footnotes, and musings, U.S. District Judge T.S. Ellis opined at length on the appropriateness of having special counsels, expressed his distaste for Mueller’s prosecutorial tactics, and warned darkly of “partisan prosecutions.”

“The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance,” Ellis wrote, going on to suggest that a bipartisan commission with subpoena power would be better suited to investigate election interference.

“Although this case will continue,” Ellis said, in closing his opinion, “those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.”

Ellis’ opinion started with an extended discussion about the legal landscape surrounding the appointment of special prosecutors.

He noted that a law concerning the appointment of independent counsels was allowed to lapse in 1999, with lawmakers believing it “had become more often a political weapon to be unleashed in the ongoing, indeed escalating culture wars, than a tool for ferreting out and prosecuting crimes ostensibly committed by high-ranking government officials.”

The judge argued that some of “criticisms leveled” at the expired independent counsel law “seem equally applicable to the current Special Counsel scheme.”

He said that the Justice Department failure to impose a time or budget limit on its special counsel regulations– while telling “him or her to find crimes” –  “allows a Special Counsel to pursue his or her targets without the usual time and budget constraints facing ordinary prosecutors, encouraging substantial elements of the public to conclude that the Special Counsel is being deployed as a political weapon.”

A footnote noted the financial costs Mueller’s office reported in its first few months of existence:

Citing Ken Starr’s investigation into President Clinton, Ellis said that “the Special Counsel regulations’ failure to require identification of specific crimes creates strong incentives for Special Counsel to allege that those individuals have committed criminal acts, even if the criminal acts the Special Counsel ultimately prosecutes are unrelated to the original reasons for appointing the Special Counsel.”

Ellis did not stop with the issues he had with special counsel regulations in general. Moving on to the details of the current matter of him, the judge speculated in a footnote that Mueller’s prosecution of Manafort is part of “larger plan” to put pressure on President Trump. Such tactics are “neither uncommon nor illegal,” but “they are distasteful,” Ellis said.

Ellis then zeroed in on Manafort’s specific arguments for why the charges should be dismissed. Though Ellis concluded that the indictment does fall within a provision of the appointment order that sanctions investigation into “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” the judge in another footnote said that the “wisdom” of including such a provision in Mueller’s appointment order was “seriously in doubt.”

The judge addressed other arguments that Manafort made during the proceedings that another line in the Mueller appointment order — which puts in the special counsel’s purview “any matters that arose or may arise directly from the investigation — is too broad. Ellis said that this question was “close” and one where Manafort’s arguments had “merit,” but ultimately decided that it was not an issue he needed to resolve.

Even still, he found room to levy a few more criticism of the current special counsel system.

He called for in a footnote “limitations, divisions, and requirements for frequent consultation” that “would ensure that the Special Counsel’s work is carefully reviewed by democratically accountable leaders within the DOJ.”

Ellis wrapped up his 31-page opinion with more tough words for the concept of a special counsel, cautioning that his decision Tuesday “should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct.”

Ellis said that “this case” was “a reminder that ultimately, our system of checks and balances and limitations on each branch’s powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law.”

“Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people,” he said. (“Assistant Attorney General” appears in this context to be a reference to the deputy attorney general, Rod Rosenstein, who is overseeing Mueller’s probe.)

Read the full opinion below:

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Special counsel Robert Mueller in court filings Tuesday raised concerns that a Russian oligarch known as “Putin’s chef”  could get access — via the discovery process in the criminal case against his firm — to sensitive materials, including “information that could thwart the ongoing efforts of the United States to “prevent his continuing criminal activity in Russia and elsewhere outside the United States.”

The filing came in the case that Mueller has brought against Russian individuals and entities accused of facilitating Russia’s election meddling on social media, and in particular, in a back-and-forth between Mueller and the only co-defendant in the indictment who has shown up in court to face the charges.

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U.S. District Judge T.S. Ellis denied on Tuesday former Trump campaign chairman Paul Manafort’s request to dismiss the case the special counsel Robert Mueller brought against him in Virginia.

“In sum, because the Special Counsel’s appointment was consistent with both constitutional requirements regarding appointment of officers and statutory requirements governing the authority to conduct criminal litigation on behalf of the United States, the Special Counsel had legal authority to investigate and to prosecute this matter and dismissal of the Superseding Indictment is not warranted,” Ellis said in his opinion

He said that the “only issue is whether the Special Counsel’s investigation and prosecution of the matters contained in the Superseding Indictment falls within the valid grant of jurisdiction contained in [paragraph b(i)] of the May 17 Appointment Order,” a reference to a provision Mueller’s appointment order tasking him with investigation of “any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump.”

Ellis concluded:

“It does; the Special Counsel’s investigation of defendant falls squarely within the jurisdiction outlined in [paragraph b(i)] of the May 17 Appointment Order, and because [paragraph b(i)] was an appropriate grant of authority, there is no basis for dismissal of the Superseding Indictment on this ground. ”

During the hearing on Manafort’s request, Ellis posed sharp and skeptical questions at the attorneys for Mueller’s team. That skepticism came through in his opinion Tuesday, even as he decided that a dismissal of the charges against Manafort was not warranted.

“[T]that conclusion should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct,” Ellis said.  “Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the Presidential election. To be sure, it is plausible, indeed ultimately persuasive here, to argue that the investigation and prosecution has some relevance to the election which occurred months if not years after the alleged misconduct.”

He argued that a “a bipartisan commission with subpoena power” would be a “better mechanism for addressing concerns about election interference.”

“The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance,” Ellis said, adding the the U.S. system of checks and balances “ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law.”

“Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people,” he said.

(The reference to the “Assistant Attorney General” appears to be a reference to Rod Rosenstein, who does not carry that title. Rosenstein is the deputy attorney general and the acting attorney general in the Mueller probe.)

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Justice Anthony Kennedy would like the world to know that he’s no fan of President Trump’s anti-Muslim rhetoric even while he provided the crucial vote upholding the President’s travel ban, which targeted some majority-Muslim countries after Trump during the campaign promised a ban on Muslims entering the United States.

Kennedy filed a brief concurrence with the majority’s 5-4 opinion upholding the third iteration of the Trump policy. The justice did not call out Trump by name, but said that, while certain government actions and statements are not subject to judicial scrutiny, it is “imperative” for a government official “to adhere to the Constitution and to its meaning and its promise.”

He then referenced the Constitution’s First Amendment, which protects freedom of religion:

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.

Court observers are watching closely to see if Kennedy chooses to retire this summer. Doing so would let Trump appoint a replacement who could sit on the court for decades.

Read the Kennedy concurrence, which starts on page 45 below:

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The Twitter account for Senate Majority Leader Mitch McConnell’s campaign was ready to remind everyone, in the minutes after the Supreme Court upheld President Trump’s travel ban, of the unprecedented power grab that helped secure such a decision.

The tweet was  photo of McConnell going in for a hand shake with Supreme Court Justice Neil Gorsuch, who filled the absence on the bench created by Justice Scalia Antonin Scalia’s death in 2016 and provided the fifth vote upholding the ban Tuesday.

McConnell notoriously blocked then-President Barack Obama from filling the seat with his own choice, D.C. Appeals Court Judge Merrick Garland, and refused to grant the Obama nominee even a committee hearing.

The seat stayed open well over a year, while the prospect of a Republican-appointed Supreme Court justice to fill the pivotal ninth seat appeared to help drive conservatives otherwise skeptical of Trump to the ballot box in 2016, according to exit polls.

Trump nominated Gorsuch, who has quickly emerged as one of the most conservative justices on the court, soon after his inauguration and Senate Republicans led by McConnell blew up the filibuster for Supreme Court nominees to see him confirmed.

McConnell, meanwhile, has bragged that blocking Garland was “the most consequential decision I’ve made in my entire public career.”

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The Russian firm that special counsel Robert Mueller has charged with funding Russia’s election meddling on social media and is run by an oligarch known as “Putin’s chef” challenged Mueller’s legal authority in court filings Monday.

The arguments that the company, Concord Management, presented to attack Mueller’s investigation were somewhat distinct from those previously put forward by former Trump campaign chairman Paul Manafort, whose own efforts to challenge thescope of Mueller’s authority were rejected by a federal judge in D.C. in May. A separate Manafort challenge to Mueller’s legal authority brought in the Virginia case against him is still pending.

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