When courts tell you you’ve violated the Constitution, one response would be to try to do better. Another approach would be to peevishly change the litigation rules of the game, and the refs, so you can do what you want without meaningful judicial scrutiny. This year, the Tennessee General Assembly looks to be taking the latter approach.
A pair of bills about to pass in Nashville would take power away from current judges to insulate the state from judicial review. Key votes, on the floor and in committee, are set for this week. Anyone who cares about a nonpartisan, independent safeguard of our constitutional rights ought to sound the alarm.
Rigging the Game: One pending bill, sponsored by Senator Brian Kelsey, would say that any time a trial judge orders preliminary injunctive relief against the state in a constitutional lawsuit, the state can automatically get a “stay” of the trial court order, pending the final outcome of the whole appellate process. Normally, such “interlocutory appeals” and “stays pending appeal” are left to the trial and appellate judges’ discretion on a case-by-case basis. When matters are time-sensitive, a stay pending appeal can mean that people’s constitutional rights can irrevocably be violated while the appellate wheels slowly grind on. Had this rule been in effect last summer, the order expanding mail voting access for the August election would have been neutralized.
on the scales.
(Photo: Alan Crosthwaite | Dreamstime.com)
This bill would also permanently bar any local government from ever challenging the constitutionality of a state statute. This provision was inspired by last year’s successful lawsuit by Shelby County and Nashville against the school voucher law (which targeted Shelby and Davidson Counties only).
This provision is also very troubling. Sometimes, only a local government entity will have the legal standing to challenge certain types of unconstitutional decisions. Other times, private persons who would have standing lack the resources or expertise to challenge unconstitutional laws. Here, local governments play a vital role.
Judicial Gerrymandering: But perhaps the most troubling bill is one that would create an entirely new court — a three-judge “Super Chancery” trial court with exclusive jurisdiction over any constitutional challenge to any state legislative, executive, or administrative action. Crucially, the “Super Chancellors” would be elected statewide — the only judges so selected in Tennessee.
The bill’s sponsor has admitted on the record this is a nakedly partisan bill, designed to ensure that only Republican judges can ever consider constitutional cases. He laments that under current law, these cases start out in Nashville, which is “the most liberal district in the state,” with overwhelmingly Democratic voters. Statewide elections, he notes, would ensure that the prevailing (Republican) ideology would dictate who could evaluate constitutional claims.
This bill is as unnecessary as a practical matter as it is outrageous in its motivation. Cases starting out at the trial level in Nashville get reviewed on appeal by appellate and State Supreme Court judges who come from all over the state, are selected by the governor and state legislature, and are overwhelmingly Republican. Indeed, that happened in the mail voting case: The Tennessee Supreme Court upheld some of the relief granted by the trial judge, but still substantially watered down her ruling in response to arguments from the state. If you want to ensure Republican judges get to weigh in on constitutional issues in deep-red Tennessee, you don’t need to spend over $1 million a year (the bill’s minimum fiscal note) to create an entire new level of judicial bureaucracy to handle what amounts to only a small fraction of the overall statewide caseload.
Worse, forcing these Super Chancellors to run statewide means that only very wealthy judicial candidates or those financed by deep-pocketed special interests can afford to run the kind of exorbitant statewide campaign that would give them any shot at winning. If you were worried that the Koch Brothers didn’t have enough of a say over our constitutional rights in the Volunteer State, fear not: Help is on the way!
Fortunately, there is still time (though not much) to stop these travesties. Contact your state legislators and tell them to reject these attempts to stack the deck.
Steve Mulroy is the Bredesen Professor of Law at the University of Memphis and a former Shelby County commissioner. He was lead plaintiffs’ counsel in last year’s lawsuit to expand mail voting access during the pandemic.