The Tennessee State House proved why state legislatures don't deserve unlimited discretion
The Tennessee House's votes to expel State Representatives Justin Jones and Justin Pearson should give us pause about courts' unlimited deference to legislative determinations
In the last few days, the expulsion of State Representatives Justin Jones and Justin Pearson for “disorderly behavior” during a gun-control protest has received international attention and condemnation from national Democrats. The decision to expel Jones and Pearson and not Representative Gloria Johnson—Jones and Pearson are Black, Johnson is white—has likewise attracted rightful condemnation. And many have pointed out that the democratic erosion in Tennessee is a microcosm of the broader move by the Republican Party toward autocracy and silencing dissent.
Of course, the effort may all be for naught, anyway. Under the Tennessee Constitution, in the event of a legislative vacancy, the county commission in which the district is located can appoint a temporary replacement until a special election is held. If Jones and Pearson are appointed to serve out the remainder of their own terms—that is, if the Shelby County Commission can resist pressure from state government officials to not appoint Pearson—then this may have all been for naught. The Tennessee Constitution, like most state constitutions, prohibits the legislature from expelling a state legislator twice for the same offense. So if Jones and Pearson rejoin the State House, we’ll be right back to where we started, with democracy worse for the wear.
There’s little indication that Jones or Pearson is planning a lawsuit to challenge their expulsion. Indeed, if they were to challenge their expulsion, they would surely lose. State courts have held, almost uniformly, for centuries that state legislatures are entitled to near-absolute deference from the judiciary when policing themselves. But the expulsion of Jones and Pearson should give us serious pause about the continued wisdom of that deference. That deference, like most other norms in our government, is necessarily predicated on the assumption that the actors in government are all committed to the same basic support for democracy. That just isn’t true anymore, if it ever was, and courts absolutely must scrutinize these determinations with greater skepticism.
I want to begin by explaining why, exactly, Jones and Pearson were expelled. The expulsion of Jones and Pearson was accomplished by the passage of two resolutions, House Resolution 65 and House Resolution 63, respectively. The two resolutions use nearly identical language, merely subbing out the names of Pearson or Jones for the other, so I’ll pull from H.R. 65 for an explanation of the conduct that, in the eyes of a supermajority of the State House, justified expelling them:
WHEREAS, during the House Floor Session (19th Legislative Day) on March 30, 2023, Justin Jones of Davidson County, along with Gloria Johnson of Knox County and Justin J. Pearson of Shelby County, did knowingly and intentionally bring disorder and dishonor to the House of Representatives through their individual and collective actions; and
WHEREAS, at approximately 10:49 AM, Representative Jones and his colleagues, having gathered at Representative Johnson's desk, moved in unison to the well and began shouting without recognition; and
WHEREAS, once gathered in the well and called out of order, Representative Jones and his colleagues proceeded to disrupt the proceedings of the House of Representatives from approximately 10:50 AM until approximately 11:42 AM; and
WHEREAS, during this time, Representative Jones and his colleagues shouted, pounded on the podium, led chants with citizens in the gallery, and generally engaged in disorderly and disruptive conduct, including refusing to leave the well, sitting on the podium, and utilizing a sign displaying a political message; and
WHEREAS, during this time, Representative Jones and Representative Pearson used a bullhorn to amplify their protestations; and
WHEREAS, these actions were done in open session in the presence of, and witnessed by, the members and staff of the House of Representatives; and
WHEREAS, it appears to the satisfaction of this Body that Representative Jones's conduct on March 30, 2023, constitutes disorderly behavior and justifies expulsion; and
WHEREAS, such disorderly behavior on the part of Representative Jones reflects adversely upon the integrity and dignity of the House of Representatives of the State of Tennessee, places a cloud upon the action of this Honorable Body, and is inconsistent with the duty of a member of this Body[.]
Tennessee Republicans called Jones’s, Johnson’s, and Pearson’s actions an “insurrection” on par with the January 6, 2021, insurrection at the U.S. Capitol. Personally, while their conduct may have violated the rules of the State House, and may even have constituted “disorderly conduct” under the Tennessee Constitution, comparing it to the January 6 insurrection—Kim, there’s people that died—is especially galling.
But fine—the State House determined that this conduct was sufficient to expel Jones and Pearson. In doing so, they relied on Article II, Section 12, of the Tennessee Constitution, which provides:
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same offense; and shall have all other powers necessary for a branch of the Legislature of a free state.
The Tennessee Supreme Court has explained that this section “gives the Senate and the House of Representatives exclusive authority to punish their members for disorderly conduct” (emphasis mine). As such, if Jones or Pearson were to contest their expulsion in court, they’d be out of luck.
This would track with a consistent approach—though not one without occasional exceptions—by state courts to not involve themselves in matters involving legislative discretion. A state house’s determination, for example, that actions on the part of a public officer constitutes “corrupt conduct in office” or a “high crime[] and misdemeanor[]” is generally unreviewable. Most state legislatures have the power to “judge [of] the elections, returns, and qualifications” of their own members. Most courts have held that a legislature’s determination that a member-elect did not actually win their election or is not actually qualified (or determinations that they did, or that they are) are likewise unreviewable.
The extent of this review has eroded over time, but at its worst, it allows a legislature to run roughshod over the due process rights of their own members—and the right of the voters to be represented by a candidate of their choice. For a comedically awful depiction of how far this power goes, consider the Montana Supreme Court’s depiction of it in State ex rel. Boulware v. Porter, a 1919 case:
Either house may even act arbitrarily and in disregard of fundamental rights. It may oust a member whose election is beyond controversy and seat as a member a person who is disqualified for the office, but, if it should do so, there is still no recourse.
It is difficult for me to grasp the rationale for such servile deference. And yet it persists. In 2015, Mississippi State Representative Bo Eaton, a Democrat, ran for re-election, and received the same number of votes as his Republican opponent, Mark Tullos. Under state law, the tie was to be resolved by drawing straws—and Eaton drew the “long, green straw,” enabling him to keep his seat. But Tullos contested his loss before the State House, which voted to seat him over Eaton. And that was it. There was no recourse allowable in court for anyone involved, much less the voters.
It’s not as though it would be impossible to generate standards under which a court could review a legislature’s determination in a case like Jones’s or Pearson’s. The state constitution specifies that members can be expelled for “disorderly behavior.” While determining whether “behavior” is sufficiently “disorderly” to justify expulsion is necessarily an exercise of discretion, the range of behavior that would qualify is not a boundless void. Most states criminalize “disorderly conduct”—by that name or by a comparable one—and allow trial judges to hold people in contempt of court for “disorderly” behavior. It’s possible to define what those words mean in an intellectually honest way.
Moreover, judicial involvement in these controversies is going to happen anyway. There are likely going to be more issues like Jones’s and Pearson’s expulsion in the coming years, in the likely event that the guardrails of our democracy are torn down. If a legislature knows, for example, that it is entitled to unlimited discretion in deciding to expel a member, what is to stop a supermajority in a state house from inventing a controversy out of thin air—an exaggerated version of something that did happen, or a totally fictionalized event—and using it as pretext to expel a member of a minority party?
Moreover, the prohibition on expelling a member “twice” for the “same offense” seems like it might come up, too. If state government leaders are threatening the Shelby County, Tennessee, Commission that if they appoint Pearson, state funds will be withheld, that strikes me as getting close to visiting a second punishment on Pearson for the “same offense.” And, again, what would stop the exact same supermajority that expelled Pearson from expelling him a second time for substantively the same conduct, but saying that it wasn’t for the literal “same” offense?
Courts are going to have to involve themselves in these disputes—or they’ll be accomplices to the destruction of our democracy.