One of the most important constitutional issues before the Tennessee General Assembly is House Resolution 23 by Representative Tim Rudd. It calls for the creation of a House and Senate Committee to determine whether Chancellor Ellen Lyle should be removed from office as a consequence of her decision to add “exceptions” to the enacted law governing absentee ballots for people who were afraid of being around other voters who might have COVID. You need to know what is at stake.
 
Any time a decision of a judge, or in this case, a Chancellor, is called into question, particularly when it relates to elections and is questioned by politicians, loud protests are raised by Bar Associations. They tout the importance of maintaining the “independence of the judiciary,” words not found in the Constitution. This independence, they say, is grounded in the principle of the separation of powers.
 
For example, this week, the Tennessee Bar Association, of which I am consciously not a member, issued a statement in which it said,  “We believe House Resolution 23 (HR 23) will have a chilling effect on the administration of justice in our State, and threatens the bedrock principle of separation of powers, which lies at the core of Tennessee's system of government.”
 

Judicial Independence Does Not Preclude Institutional Checks 

A limited kind of judicial independence is important, but judicial independence is not autonomy. Ironically, the separation of powers the Bar Associations tout entails the idea of institutional checks and balances. Each branch is subject to checks and balances by each of the others for the sake of the liberty of the people who authorized their very existence.
 
Nothing in the Constitution implies that members of the judicial branch are per se exempt from the system of checks and balances expressly stated in our state Constitution.
 
In fact, the Bar Association acknowledges that the Tennessee Constitution expressly authorizes the legislature to remove judges “for cause.” That term is not defined and was therefore left to the law-making branch to define.
 
But the Association suggests that Chancellor Lyle‘s decision to add fear of contracting COVID to the absentee ballot law should not fall within the concept of “cause” and that other checks, such as the election of Chancellors and reversals of wrong judgments by appellate courts, should be trusted.
 
No doubt the people provided themselves a number of checks on the civil government they created and empowered. Still, I ask: cannot “cause” be a flagrant violation of the separation of powers and a flagrant misunderstanding of the limited nature of the judicial power itself which, if allowed to go unchecked by the branch whose constitutional powers are usurped, will “affect the order of the political system” (Federalist Paper, No. 81 (Hamilton))?
 
That is exactly what happens when the judicial power goes beyond a judgment that resolves a particular dispute between particular parties to rewrite enacted statutes.
 
Moreover, in this particular case, even after the Tennessee Supreme Court reversed Chancellor Lyle’s original decision, she subsequently issued a new judgment that in the eyes of many still exceeded the scope of the judicial power and made “law” for the whole people of Tennessee. This is particularly disturbing.
 

Lawyers Need to Fulfill Their Duty to the Public

 
But don’t expect to hear many (if any) lawyers say what I just said. Speaking critically of a judge in public is frowned upon by Bench and Bar. But that does not change the fact that the Code of Professional Conduct states that lawyers “play a vital role in the preservation of society” and that a lawyer is considered an “officer” within the legal system.
 
Officers have duties and one of them, according to the Code, is that lawyers “should further the public’s understanding of and confidence in the rule of law.” That is my objective, and I speak in furtherance of my duty as an officer of the legal system.
 

The Judicial Power Is Actually Very Limited

The public, who I am duty-bound to help educate, needs to know that a judge’s power is to issue a judgment that resolves a particular dispute among particular parties and a judgment does not constitute law in the constitutional sense in which that word is used, particularly as to the whole body of citizens. For a lawyer to imply otherwise is, I submit, a breach of his or her duties under Code of Conduct.
 
Judges who show no respect for the separation of powers by effectively amending statutes are just as much a threat to the liberty of the citizens who created their office as are legislators and governors who show no respect for the separation of powers by acquiescing to abuse by the others. Respect is a two-way street, and a system of checks and balances was created to help members of each branch remind members of the other branches of that.
 
Space will not allow me to delve further into the limited nature of the judicial power, but I’ll have a video on this shortly, and at this link you can find a short statement that should be helpful.
 

Did Chancellor Lyle Violate the U.S. Constitution’s ‘Electors Clause’?

 
But something else significant is at stake here that was not mentioned in the Resolution. It should be. It was made clear in a brief submitted to the United States Supreme Court and to which our state’s attorney general was a signatory.
 
That brief said, “The Electors Clause provides that each State “shall appoint” its Presidential electors “in such Manner as the Legislature thereof may direct.” U.S. CONST. art. II, § 1, cl. 4 (emphasis added).
 
The brief further says:
   
If our attorney general thinks it important enough to tell the U.S. Supreme Court that changes in election laws by judicial officers in another state violates the separation of powers and threatens individual liberty” of Tennesseans, then how can the same not be said when a judge in Tennessee does that to individuals who live in Tennessee?
 
How can it be said that those who represent us err to establish a procedure by which it can examine the possibility of such an encroachment and that threat to liberty? Does truth ever suffer from honest debate? No, as Thomas Jefferson said, truth suffers when honest debate in search of it is discouraged. [1]
 
Though we do not know what six Supreme Court justices think about the propriety and constitutionally of changes in legislatively enacted election laws by judicial actors, we know three of them think this issue is worthy of consideration because of their scathing dissents protesting the Supreme Court’s refusal to hear the Elector Clause case advocated for by our attorney general.
 
The checks and balance in Tennessee’s Constitution of removing judges “for cause” is meaningless if there is never a circumstance in which its exercise should be considered.

I do not believe it is unreasonable to consider its use when doing so is consistent with what our attorney general and three Supreme Court justices have said about state judges who rewrite a state’s laws governing a presidential election.