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Courtroom Activism in Tennessee

Courtroom Activism in Tennessee

How activists in the state disrupt the judicial system

After Governor Lee created the Tennessee Education Savings Account (ESA) in 2019, a flurry of activist litigation was filed. “Vouchers for private schools aren’t very popular with real-life voters,” Senator Jeff Yarbro (D-21) stated as the lawsuits continued to make their way through the courts in 2022. A poll taken by the American Federation for Children (AFC) at the time of the legislation’s introduction in 2019 showed 78 percent of Tennesseans supported the creation of an ESA program, with a 68 percent approval by Tennesseans who identified as Democrats. Nevertheless, in 2022, the initiative, which creates a private school voucher program, was held up in court. This tactic– clogging up the system with lawsuits– is common practice.

Over the years, there’s been a blitz of judgments passed down from the bench and retroactive intervention interfering with court rulings, all with the implicit intent to further social and political agendas. Unfortunately, Tennessee is not immune to this phenomenon. Below, we outline a few examples from over the years which show the profound effect judicial activism has on legal outcomes.


On the front end, we’ve seen activism hang up the courts in Tennessee with litigation, such as in the case of Planned Parenthood v. Sundquist (2000) where the plaintiff challenged the constitutionality of informed consent in the case of women seeking abortions. The lawsuit argued that the statute, which required “that physicians warn their patients that ‘abortion in a considerable number of cases constitutes a major surgical procedure,’ that second-trimester abortions be performed in a hospital and that women wait two days after meeting with a physician to receive an abortion,” was unconstitutional. The Davidson County Circuit Court sided in partial favor of Planned Parenthood. The Tennessee Court of Appeals then overturned the ruling on appeal, only for it to be overturned once more by the Tennessee Supreme Court. This case is just one example of the myriad suits brought forward by special interest groups that continuously weigh down the system.


We also continue to see interference on the back end of successful lawsuits. As discrimination cases continue to pile up against the Department of Agriculture after a Tennessee court’s ruling in Holman v. Vilsack et al, the department is requesting to stay the proceedings of related cases.

At the time of the Holman lawsuit, the loan forgiveness program, which was established by President Joe Biden’s American Rescue Plan Act (ARPA), was declared unconstitutional because it was only made available to “socially disadvantaged groups”—defined by the USDA as “the racial classifications of ‘Black, American Indian/Alaskan Native, Hispanic, or Asian, or Hawaiian/Pacific Islander.’” In other, similar cases the Department of Agriculture has requested stays to prevent “hardship on the defendants” and to readdress the term “socially disadvantaged,” claiming that the term’s definition does not automatically exclude white farmers.

But even though the ruling was already handed down in the Holman case, the US government has maneuvered through the court system: pitting multiple cases against one another and/or bundling them together, creating the illusion that the Holman case didn’t technically “prevail.”


We’re familiar with Nashville District Attorney Glenn Funk’s refusal to prosecute certain laws passed by the state, but a more recent example in Memphis reveals a different dynamic. Convicted murderer Michael Sample filed a petition in September 2022 contending he has an “intellectual disability and is ineligible to be executed.” Interestingly, at the time of his trial in 1981, Sample introduced witness testimonies as evidence attesting to his capacity as a “good” and “conscientious” employee, father, husband, and son; the evidence, designed to outline his character, also points to his stability at the time.

On February 3rd, 2023, Shelby County Criminal Court Judge Paula Skahan ordered that Sample’s death sentence be vacated, ruling in agreement with his more recent claims of intellectual disability. Shelby County District Attorney Steven Mulroy affirmatively agreed with both the petition and Judge Skahan’s order issued a month ago, and now Sample, who was convicted of two counts of felony murder after shooting witnesses during a robbery, is eligible to be considered for release.

Yesterday, as part of an effort to prevent such workarounds, House Leader William Lamberth added amendment 5770 to HB1002. The amendment gives the state attorney general, in capital cases, “the ability and authority to have exclusive jurisdiction over post-conviction or any other collateral attacks on that particular sentence handed down by the jury.” In other words, it allows the AG’s office to defend sentences in instances where these retroactive actions circumvent a jury’s original decision.

As we approach new judicial crossroads, it’s important to remember what has become an enduring part of the legal process—activism clogging up the arteries of the judicial system, contributing to the further atrophy of the system.