Commentary: Original(ist) sin

Shameless hypocrisy has been the Tennessee GOP’s calling card for a good while now, with no shortage of ready examples: a thirst for local control on education, except when choices made locally are deemed culturally or scientifically unacceptable; performative interest in expanding health care to needy Tennesseans, but stubborn rejection of federal dollars that might actually do it; fierce opposition to a national infrastructure bill, followed by a brazen eagerness to take credit for the investments it catalyzes. And of course there’s that whole “pro-life” witlessness: protect the unborn, but do as little as possible to advance the economic and educational prospects of the born (and if they misbehave kill them). 

This year brings a new flavor: craven enthusiasm for using the judicial system in ways that collide head on with the GOP’s incessant harping about how courts and judges should work. When it comes to the courts, conservatives endlessly peddle fantasies of “originalism” and its little cousin “textualism” – companion theories imploring judges to interpret laws based on what their words plainly say and what those who wrote those words plainly intended. But as two cases working their way through the courts illustrate with striking clarity, originalism has a magical way of losing its luster when the words on a page have a pesky way of denying you the outcome you want.

The cases at hand are, one, the GOP-controlled Davidson County Election Commission’s stubborn persistence with legal appeals aimed at resuscitating a fatally wounded anti-tax referendum, and two, the state attorney general’s decision (at the behest of GOP leaders) to appeal a three-judge panel’s order halting state senate redistricting maps. The specifics of both are dry and technical and (to say the least) unexciting, so I’ll gloss over the boring details and zero in on the hypocrisy.

In the Davidson County case, the Election Commission refuses to take no for an answer, the “no” coming in the form of decisions in Chancery Court last June and then in the Court of Appeals last month that the petition that many voters signed back in 2021 calling for a referendum had a fatal flaw. The flaw wasn’t subtle; it was plain as day. The Metro Charter says when you circulate a petition of this sort you have to include within it a specific date that the referendum election will be held. The exact phrasing in the Charter is that a petition must “prescribe a date.” Couldn’t be clearer: a date. The actual petition contained two dates, which is genuinely problematic for reasons I won’t go into here – that would be the boring part I’ll skip. But at the end of the day, as the Tennessee Court of Appeals wrote last month: “The language of the Charter here is clear: a petition seeking to amend the Charter ‘shall’ prescribe ‘a date.’” Two dates are not “a date.”

Undaunted, and already having spent hundreds of thousands of taxpayer dollars on this fruitless legal pursuit, the Republicans who control the Election Commission decided last week to throw more good money after bad and take this stinker to the Tennessee Supreme Court – mainly at the urging of their hired outside attorney, who bills the taxpayers at who-the-hell-knows-how-much per hour. A textualist who really believed in textualism would look at the language of the Charter and the language of the referendum and call it a day.

The details of the state senate redistricting case are equally tedious, but just as textually clear. There’s a provision in the Tennessee Constitution (article 2, section 3, if you’re playing along at home) that says when the legislature redraws senate districts (as we do every ten years), if a big county (like Davidson) has more than one district (which it does – four to be exact), they have to number those districts consecutively. When the Republicans who control the legislature did the redrawing earlier this year, they numbered Davidson’s districts 17, 19, 20, and 21. Not consecutive! You may reasonably wonder: Why on earth does this matter? It turns out there are legitimate reasons for the sequence requirement related to timing of elections – but it’s more of the boring stuff I’ll skip, so trust me on that.

In any case the reasons are beside the point. What matters is a legitimate plain-as-day constitutional provision, which reads in full: “In a county having more than one senatorial district, the districts shall be numbered consecutively.” Constitutions written long ago can often be linguistically arcane, but this passage sure isn’t— could it be any clearer? The judicial panel that tossed the plan last week obviously thought not.

And yet we find GOP leaders, having knowingly crafted a map that plainly violates the plain language of the rule, now urging the state’s highest court to ignore the plain language of the rule, and the plain fact of their having adopted a plan that plainly violates the plain language of the rule. This is plainly idiotic, but what is definitely isn’t is plainly textualist. As the Tennessee Journal’s Eric Schelzig deftly observed the other day, applicants for Supreme Court vacancies in conservative Tennessee typically step over themselves claiming originalist bona fides, so it will be interesting to see how they handle this one.

Summing up: We have here two cases involving Tennessee Republicans – perennial worshippers at the altar of original meaning in judicial review – wasting court time and public money imploring judges to ignore the words clearly written on a page that don’t fit the ends they seek. Actual originalism looks like this: “The law can mean no more or less than that communicated by the language in which it is written.” That’s U.S.  Supreme Court Justice Amy Coney Barrett in a 2019 lecture. If you ask me it’s a loopy way to run a modern constitutional republic, but if you and your party are going to preach originalism as judicial gospel, you really do need to stop asking judges to avoid reading what’s right there on the page.