April 7, 2023

A Week for the Rule of Law

Russ Feingold President

This was a momentous week for the rule of law. On Tuesday, for the first time in American history, a former president was criminally indicted and arraigned. Former President Donald Trump has been charged by the state of New York with 34 felony counts of falsifying New York business records.

A pillar of the rule of law is that nobody is above the law, regardless of rank or title. No amount of money or power can elevate someone above the bounds of the law. The indictment of Trump is about exactly this, the rule of law. Without presupposing an outcome and recognizing that Trump retains the presumption of innocence, we are ever mindful of the importance of accountability in an enduring democracy. To be a nation of laws, we must uphold those laws and hold accountable those who defy them.

The sanctity of the rule of law was affirmed Tuesday night when the election for a seat on the Wisconsin Supreme Court was called. For months, this election was rightfully described as one of, if not the most consequential, elections of 2023 and not just for Wisconsinites. With state courts increasingly on the frontlines of protecting fundamental freedoms and safeguarding our democracy, a state supreme court election in a swing state like Wisconsin is likely to have regional and even nationwide implications.

Now more than ever, we need justices to be judges and not legislators. We need our courts to be bound by the rule of law, precedent, and judicial restraint, rather than to act as a third political branch with a partisan agenda. It is our hope that the election of Janet Protasiewicz begins to restore the Wisconsin Supreme Court to just that, a court bound by the rule of law and not by partisan politics. As we look ahead, we may have faith in the fair and impartial deliberations of the Wisconsin Supreme Court, including as we look to 2024 and the litigation likely to surround the election.

In sharp contrast to these affirmations of the rule of law, this week also saw a flagrant, dangerous disregard for democratic guardrails in Tennessee. After six people, including three children, were violently killed in a mass shooting last week in Nashville, TN Reps. Gloria Johnson, Justin Jones, and Justin Pearson led a protest on the floor of the Tennessee House of Representatives in support of gun violence prevention reform. In response to the protest, GOP members of the TN legislature voted on motions to expel the three legislators this week and did expel Reps. Jones and Pearson. This came after the three legislators were already removed from their committee assignments.

ACS is appalled by this dangerous assault on democracy and condemns the unjust removal of Reps. Jones and Pearson. Did the legislators violate a rule of decorum? Sure. They admit as much. Should that be grounds for removing their committee assignments and expelling them from the legislature? Absolutely not.

The claim that these expulsions were about decorum was a poor and obvious fig leaf from the start. The farce was made even more clear during Thursday’s proceedings, which saw House rules broken and debate cut off with no repercussions for those in the majority. It is also impossible to ignore the GOP majority’s targeting of two young, Black legislators for this unjust, outrageous treatment.

Representatives Jones and Pearson represent communities that went to the polls and elected them to be their voices in the statehouse. Last week, they joined thousands of students, parents, seniors, and children in expressing their frustration and exasperation with the General Assembly’s inaction on preventing gun violence. In expelling these legislators for a breach of decorum, the GOP majority has deprived tens of thousands of Tennesseans of meaningful representation in their House of Representatives, a majority of whom are people of color.

These expulsions also send a dangerous message to other legislators about the consequences of expressing opinions at odds with those who wield power. Had the protest aligned with the views of the majority, it is almost certain that the two legislators would not have been expelled from their democratically-elected seats. Reps. Jones and Pearson were penalized for expressing their support for gun violence prevention reforms and for doing so on the floor of the legislature.

The expulsion of duly-elected members from the General Assembly has been incredibly rare in Tennessee –a procedure used only nine times in the state’s 227-year history, and never for a breach of decorum. These expulsions are unprecedented and incredibly dangerous and anti-democratic.

As I’ve said numerous times before, the preservation of democracy, including in this country, is not a given. Its preservation requires continuous affirmation by our citizenry and by our elected representatives. We should speak in support when the rule of law is upheld, and we must be equally outspoken when power is blatantly abused to oppress and disempower at the expense of our democratic legitimacy.

Criminal Justice, Importance of the Courts, Right to Protest