Tennessee Supreme Court - Judicial Selection

Judicial Selection

The method by which Tennessee's supreme court justices are selected has changed significantly over the years.

Originally, justices were elected by the Tennessee General Assembly and held lifetime tenures.

However, in 1853, the state constitution was amended to set judicial term lengths at eight years (even with changes in the election process, the tenure has remained at eight years ever since) and to provide that all judges (including supreme court justices) would be elected by the people. Under this arrangement, a justice could enter office either through gubernatorial appointment (to fill a vacancy) or by winning a partisan election. Either way, the justice would have to stand for reelection during the next general state election.

However, in 1971, a statute was passed that modified this process at the appellate level. Under a modified version of the Missouri Plan, appellate judges (including supreme court justices) would only be subjected to a "Yes/No" retention vote rather than partisan opponents. Thus it became impossible to become an appellate judge without being appointed by the governor.

The revised statue was subject to litigation. In the case of Higgins v. Dunn (1973), the Court held that the retention elections were constitutional, as the constitution only specified that judges were to be elected but did not specify the specific type of elections the General Assembly had to enact in doing so. Justice Allison Humphries, in his dissent, opined that the supreme court justices approving the constitutionality of the Modified Missouri Plan had, "like Esau, sold their soul for a mess of pottage" and had made the judicial branch subordinate to the legislative branch.

Partially as a result of the decision, in 1974, the statute was revised to remove Tennessee Supreme Court justices from the plan. However, in 1994 the plan (now called the "Tennessee Plan") was revised and once again extended to supreme court justices.

Once again, the statute was challenged, in the case of DeLaney v. Thompson (1998). The plaintiffs argued that the process was not an "election" in the sense envisioned by the writers of the state constitution, and that the court in Higgins v. Dunn had been incompetent to render a decision due to their interest in the subject matter of the case. DeLaney v. Thompson was appealed to the Tennessee Supreme Court; unlike in Higgins v. Dunn, this time the whole court recused itself. The Governor was thus required to appoint an entire "special Supreme Court" to hear this case; it refused to rule on the constitutionality of the Tennessee Plan, and instead remanded the case on a technicality.

As of 2011, only one member of the Tennessee Supreme Court has ever been removed under the Tennessee Plan. Former Justice Penny White was removed in 1996 in a campaign reminiscent of that used a few years prior in California against former Chief Justice Rose Bird, and for largely the same reason: White's apparent opposition to the death penalty.