The Fair Courts E-Lert: Supreme Court Justice Anthony Kennedy Retires; As Trump Attacks Due Process, Sessions Undermines Immigration Courts

June 29, 2018


Supreme Court Justice Anthony Kennedy Retires

On Wednesday, Supreme Court Justice Anthony Kennedy submitted a letter to President Trump announcing he will retire effective July 31st, giving Trump the opportunity to fill a second Supreme Court seat. Writing for the Brennan Center, Michael Waldman wrote of Kennedy’s “consequential and corrosive” record on cases affecting American democracy, from campaign finance to partisan gerrymandering. In the New Republic, Andrew Cohen challenged Kennedy’s reputation as a moderate swing justice, and questioned whether his landmark decisions will stand in his absence.

Trump told reporters the process of replacing Kennedy will “begin immediately,” and Senate Majority Leader Mitch McConnell (R-KY) said the Senate “will vote to confirm Justice Kennedy’s successor this fall.” The White House said Trump would choose a nominee from a shortlist of 25 potential nominees. 


As Trump Attacks Due Process, Sessions Undermines Immigration Courts

In a tweet on Sunday, President Trump called for the deportation of noncitizens crossing the border “with no Judges or Court Cases.” He wrote, “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.” His tweet was met with quick condemnation, as critics noted that the Constitution guarantees the due process rights of noncitizens.

The President doubled down on Monday, tweeting, “Hiring manythousands [sic] of judges, and going through a long and complicated legal process, is not the way to go.” White House Press Secretary Sarah Huckabee Sanders defended Trump’s tweets, claiming that “Just because you don't see a judge doesn't mean you aren't receiving due process,” and saying Trump “would certainly like to see more expedited removal,” a process that bypasses immigration courts.

The Brennan Center’s Laila Robbins explained that Attorney General Jeff Sessions has already been working to cripple immigration courts’ effectiveness, by overburdening their already crowded dockets and introducing a new evaluative quota system for immigration judges that threatens due process.  “Immigration courts are supposed to be a backstop against unfair treatment in our system” wrote Robbins, “There is every indication that Sessions will continue to use his power to quietly cripple them.”


North Carolina General Assembly Votes to Give Itself Power to Fill Judicial Vacancies

This week, the North Carolina Senate and House approved the “Judicial Vacancy Sunshine Amendment,” a constitutional amendment that would shift the power to fill judicial vacancies from the governor to lawmakers.

In North Carolina, most judges are selected via elections, with the exception of judicial vacancies that arise when a judge leaves the bench before the end of her term. Those interim vacancies are filled by the governor until the next election. The amendment would create a commission to evaluate candidates but give the General Assembly the power to select any two qualified candidates for the governor to choose between.  

This reform follows the legislature’s consideration of a host of controversial changes to judicial selection over the last year, including judicial redistricting, legislative selection of judges, and reducing judicial term lengths to two years. And the legislature recently moved from nonpartisan judicial elections to partisan judicial elections and eliminated judicial primaries for this year.

Voters must still approve the measure in November.


Kansas Supreme Court’s Education Ruling Postpones Confrontation with Legislature

On Monday, the Kansas Supreme Court ruled that the legislature’s new public school funding plan is still inadequate despite an increase the legislature approved earlier this year. But the court gave the legislature until 2019 to fix its plan, and held that if lawmakers adjusted funding for inflation, Kansas “can bring the K-12 public education financing system into compliance with the adequacy requirement.”

This ruling averted a potential school shutdown and conflict between the judiciary and legislature. The Wichita Eagle explains, “The court didn’t stop the flow of funds to districts, a move that would have effectively closed schools. It also did not set a short deadline for action that would have required a special legislative session during campaign season.”

Earlier this year, after the court had set an April deadline to properly fund public schools, the legislature considered a constitutional amendment to largely prohibit courts from hearing school funding cases. The Wichita Eagle notes that, despite the extension granted by the court, there were renewed calls for a constitutional amendment following this week’s ruling. Kansas House Speaker Ron Ryckman said, “It is vitally important that the people of Kansas direct how their tax dollars are prioritized for our students and it appears that a Constitutional Amendment is the only way to give control back to the people.”