Supreme Court Precedent Against Tennessee Legislature Expulsion

-by Patrick Toomey, Jr.

As most readers of this site are presumably aware, 2 young black state legislators were expelled by from the Tennessee House of Representatives by a 2/3 vote late last week. The stated grounds for this expulsion was that the legislators allegedly violated the body's decorum rules by leading personal protests for gun reform on the House floor and subsequently joining demonstrators in the chamber's public gallery during a legislative session. This expulsion violated the First Amendment rights of these 2 legislators as per a 1966 9-0 Supreme Court decision, Bond v. Floyd. As per the Syllabus of that decision:

Several months after the election in June 1965 to the Georgia House of Representatives of appellant [Julian] Bond, a Negro, a civil rights organization of which he was a staff member issued an anti-war statement against the Government's Vietnam policy and the operation of the Selective Service laws. Bond endorsed the statement in a news interview stating, among other things, that, as "a second class citizen," he was not required to support the war, as a pacifist, he was opposed to all war, and he saw nothing inconsistent with his statement and his taking the oath of office. House members, in petitions, challenged Bond's right to be seated, charging that his statements aided our enemies, violated the Selective Service laws, discredited the House, and were inconsistent with the legislator's mandatory oath to support the Constitution. Following the House clerk's refusal to seat him, Bond, manifesting willingness to take the oath, challenged the petitions as depriving him of his First Amendment rights and being racially motivated. At a House committee hearing, Bond amplified his views and denied having urged draft card burning or other law violations. Following the hearing, the committee concluded that Bond should not be seated, and the House thereafter refused to seat him. Bond brought this action in District Court for injunctive relief and declaratory judgment. The District Court, holding that it had jurisdiction to decide the constitutional issue, concluded that Bond had been accorded procedural due process through the hearing. It also held that the House had a rational basis for concluding that Bond's remarks exceeded criticism of national policy and that he could not in good faith take an oath to support the State and Federal Constitutions, and thus could not meet a qualification for membership which the House had the power to impose. While Bond's appeal to this Court under 28 U.S.C. § 1253 from that decision was pending, he was again elected as a Representative, in a special election. He was rejected by the House Rules Committee when he declined to recant, and later was elected again, in the regular 1966 primary and general elections.

In an opinion written by Chief Justice Earl Warren, the Court unanimously struck down the Georgia legislature’s refusal to seat Bond, holding:

In disqualifying Bond because of his statements, the State violated the First Amendment made applicable to the States by the Fourteenth.

(a) A majority of state legislators is not authorized to test the sincerity with which another duly elected legislator meets the requirement for holding office of swearing to support the Federal and State Constitutions.

(b) The State may not apply to a legislator a First Amendment standard stricter than that applicable to a private citizen.

(c) Bond's statements do not show an incitement to violate the Selective Service statute's prohibition of counseling against registration for military service.

(d) Though a State may impose all oath requirement on legislators, it cannot limit their capacity to express views on local or national policy. "[D]ebate on public issues should be uninhibited, robust, and wide-open." New York Times v. Sullivan.

This is Julian Bond (RIP) back when this case was decided-- and when Howie took him to dinner. Click on the image to read the story of how that happened

A previous case which facts that are substantially similar to a current case is said to be “on all fours.” This metaphor is meant as a comparison to an animal moving on all four legs. In my view, were the 2 expelled legislators to sue for reinstatement in federal court, their case would be on all fours with Bond v. Floyd. Just as Julian Bond was denied admission to the Georgia Legislature for expressing his views on the violence of the Vietnam War abroad, these 2 legislators were expelled from the Tennessee Legislature for expressing their views on gun violence at home. There is no meaningful distinction between those 2 situations. Were such a case to make it to the Supreme Court, whether the current Court would similarly view this Warren Court precedent is an open question.

For centuries, stare decisis (“let the decision stand” or “to stand by things decided”) has been a basic principle of the Anglo-American common law system. It’s a core concept that is drilled into aspiring attorneys’ heads starting in the first week of law school. Stare decisis is a fundamentally conservative principle. It is premised on the argument that law should provide us with consistency, uniformity and predictability in human affairs. Applied here, it means that a duly elected representative cannot be denied membership in a state legislature for expressing his/her views on a hotly contested issue.

I have no clue as to whether the 2 expelled legislators will sue for reinstatement. I also have no clue as to whether the current Court would uphold the unanimous Bond precedent if such a suit ultimately came before it. It’s fair to assume that the 3 Democratic justices (Kagan, Sotomayor, Jackson) would all vote to uphold Bond. What the 6 GOP members might do is anyone’s guess. These self-described “conservatives” have, on various past occasions, treated stare decisis with the same respect that the president who nominated 3 of them treats his marriage vows.

The First Amendment, the right of Tennessee citizens to freely elect representatives of their choosing, and basic principles of fairness and common sense all took a severe beating on the floor of the Tennessee House last week. There was a relatively brief period under Warren’s direction in which our Supreme Court took the view that its job was to right obvious constitutional wrongs. The current Court generally takes a different viewpoint, and it’s anyone’s guess as to whether this Court would honor a Warren Court precedent righting such an obvious constitutional wrong.