The Institute for Justice’s Center for Judicial Engagement was built around a premise that ought to be uncontroversial: Courts have a constitutionally assigned role, and that role matters. Courts are the mechanism by which citizens challenge unaccountable government behavior. A functioning judiciary is, in practice, the check that keeps the other branches honest. When citizens can’t reach courts, or can’t stay in them, that check disappears.

Tennessee’s legislature spent its 114th session making that check harder to use.

Before it did, Tennessee held the top spot in the Center for Practical Federalism’s 2025 Federalism Scorecard. The scorecard evaluates how well states protect their sovereignty and residents from unaccountable government officials like state and federal agencies. One of the reasons for Tennessee’s stellar rating was its score on providing “Injunctive Relief for Citizens,” a variable that tracks a subject near and dear to CJE’s heart: Whether a state’s residents can challenge unlawful or unaccountable state agency behavior in court. Since 2018, Tennessee had been the only state in the country that guaranteed citizens a statutory pathway to challenge governmental overreach in court. Tennessee Code Annotated § 1-3-121 gave any “affected person” standing to seek declaratory or injunctive relief against state action.

Tennessee’s General Assembly repealed it in April 2026.

That alone would be cause for concern. But the repeal was one piece of a larger package—five bills, nearly six—that together make it systematically harder to hold state government officials accountable in court. Tennessee’s coveted place atop the federalism leaderboard is almost certainly gone. And ironically, the driving force behind these changes wasn’t an elected legislator answerable to Tennessee voters. It was Tennessee Attorney General Jonathan Skrmetti, who under the state constitution is appointed by the justices of the Tennessee Supreme Court. He doesn’t answer to voters. He doesn’t answer to the legislature that cooperated with his agenda. But by the time the 114th session adjourned, the executive office he holds had considerably more power than when the session began.

“Behind Closed Doors”

The package didn’t emerge organically from the legislative calendar. Its origin is documented. WPLN reported that the AG’s office proposed SB 1958—explicitly, the reporting notes, “to cut down on the time and resources it spends defending state laws in court.” The same outlet reported that Skrmetti’s office crafted SB 1731. State Senator John Stevens, chairman of the Senate Judiciary Committee, carried both bills plus SB 1858—three of the five measures in this package. On the Senate floor, Stevens defended SB 1958 in terms that framed judicial review itself as the problem: “The people will not accept being ruled by the judiciary. Our system works because the people have a say in the laws that govern their lives.”

That framing—courts as a threat to democratic governance—is a familiar one, and not entirely without substance. But it obscures what these bills actually do. They don’t transfer power from courts to the legislature. They transfer it to the AG’s office: an unelected executive official who proposed the legislation, helped draft it, and stands to benefit most directly from its passage. Senator Stevens carried the bills. The power flows elsewhere.

Whether that’s cause for concern has very little to do with the current AG’s intentions. It has everything to do with what the office now carries.

“One Piece at a Time”

Tennessee’s 114th session produced five interlocking measures that together make it systematically harder to hold state government accountable in court.

SB 1958 (signed April 6, 2026) repealed the statutory standing provision that gave any “affected person” the right to challenge the legality or constitutionality of governmental action in court. The replacement preserves that right only against local governments—cities, counties, school districts. Challenge a state law or a state official? You’re on your own, needing some other hook for standing, which in practice often means waiting until the government tries to enforce the law against you. Ben Stormes, an attorney at the Beacon Center—a Tennessee-based nonprofit that, along with IJ, was part of the coalition opposing the repeal—described the dilemma perfectly in The Tennessean’s coverage of the legislation: “If you don’t have a remedy to go to court to enforce your rights, then your rights are threatened, and government accountability is also threatened.”

SB 1731 (signed March 26, 2026) gives the state an automatic right to take immediate interlocutory appeals in constitutional litigation. The most significant expansion: When a court denies the state’s motion to dismiss a constitutional challenge, the state can now immediately appeal that denial—halting the case while the appeal winds through the system. Private defendants don’t get this right. Only the state does. Citizens who clear the higher threshold to get into court can watch the case freeze for months or years on a procedure that wasn’t available before.

SB 1858 (signed April 27, 2026) rearranges the procedural furniture for constitutional challenges. Under prior law, venue lies in the plaintiff’s home county—a neutral default. The new law opens venue to any county in Tennessee, which means the state can argue for transfer to whatever county it considers friendliest. The bill also imposes geographic constraints on how the Tennessee Supreme Court selects three-judge panels for constitutional cases, and extends from 15 to 90 days the time a court must give the legislature to remedy a defective redistricting plan. That’s long enough to cover an entire election cycle—meaning unconstitutional maps can stay in place through an election before a court can impose its own solution.

SB 2136 / HB 1885 (signed after the final session day, April 24, 2026) is technically a sweepstakes casino ban. Its more significant provision expands the AG’s investigative authority broadly—document demands, compelled sworn examinations, civil penalties of up to $1,000 per document for non-compliance—in terms that reach beyond gambling to any matter “within the purview of the attorney general and reporter.” The investigations are confidential by default. Put another way: the AG can open an investigation, demand your records, compel your sworn testimony, and fine you for non-cooperation, all without a court order and without public notice.

SB 2040 / HB 1959, the Fair Rx Act, passed both chambers with bipartisan support (Senate 24-9, House 86-7) and is heading to the governor’s desk. The bill itself—prohibiting companies from simultaneously owning both pharmacies and pharmacy benefit managers—is a legitimate policy debate. What happened around it is something else, which is why it belongs in this story.

There was a sixth bill that didn’t make it. HB 2069 / SB 2418 would have required local governments to get AG approval before retaining contingency-fee lawyers—and authorized the AG to deny approval, intervene in pending proceedings, and seek dismissal if a city or county used an unapproved firm. In practical terms, it would have given the executive branch veto power over cities’ and counties’ ability to bring plaintiff-side litigation. It passed out of multiple committees before failing on the House floor 36-32, with 22 members present but not voting. This legislature drew a line somewhere; when the power consolidation was made too explicit, a significant bloc balked. That the line was drawn there, and not earlier, is its own kind of data point.

“Harper Valley P.T.A.”

CVS Health opposed the Fair Rx Act loudly. It spent over $1.3 million on television ads across six Tennessee markets. It used its pharmacy text-alert system to ask customers to contact their legislators. This is lobbying—expensive, aggressive lobbying—but still, just lobbying.

The state’s response was to deploy the attorney general.

A Democratic lawmaker formally requested that AG Skrmetti investigate CVS for consumer deception and antitrust violations related to its lobbying campaign. Skrmetti sent CVS CEO David Joyner a letter threatening “all available enforcement options” if CVS didn’t stop sending “political advocacy messages” through its pharmacy text system. The AG’s theory: CVS customers had opted into prescription alerts, not political communications. That may be a legitimate consumer protection question. In isolation, it might even be the right call.

But context is everything. The letter arrived while CVS was actively opposing a bill the legislature wanted to pass. Whatever the merits of the terms-of-service analysis, the effect was to threaten enforcement action against a company specifically for the content of its communications. CVS has now pledged to challenge the Fair Rx Act in federal court—as it did in Arkansas, where a comparable PBM law was enjoined.

This is what the expanded investigative toolkit from SB 2136 looks like in practice. Broad authority to investigate “any matter within the purview of the attorney general” is more consequential once you’ve seen how that authority gets used. A company that lobbies against a bill now has to weigh whether doing so might trigger an investigation with subpoena-like powers, secret proceedings, and civil penalties for non-compliance.

“Forever and Ever, Amen”

The question isn’t whether you trust Jonathan Skrmetti’s judgment. The question is whether you trust his successors—and the succession after that.

The General Assembly extended significant authority to the AG’s office this session—consolidated investigative powers, new procedural advantages, and reduced citizen access to courts. That authority will run, by operation of law, to every future occupant of that position. It doesn’t come with a sunset clause. It doesn’t revert when the next AG takes a different view of how to use it. And because Tennessee’s AG is appointed rather than elected, legislators—and by extension their voters—have no direct mechanism to hold that office accountable if the tools get used in ways they didn’t intend.

This is the structural argument that gets lost in the usual debate over judicial activism and restraint. IJ’s Center for Judicial Engagement doesn’t argue that courts should intervene more or less—it argues that courts have a constitutionally assigned role that exists independent of which direction their rulings tend. When the political branches systematically make courts harder to reach, harder to stay in, and less able to craft effective remedies, the harm isn’t to one political faction. It’s to the constitutional architecture itself.

Tennessee spent a legislative session working on exactly that architecture. Citizens now face a gauntlet: No clear statutory standing to bring a constitutional challenge to state law, automatic procedural weapons available only to the state if they make it past the door, potential venue manipulation, and—if they have the audacity to lobby against something the legislature favors—the possibility of an executive investigation with tools and a demonstrated willingness to use them.

The #1 federalism ranking was partly earned by being the only state that guaranteed its citizens a right to challenge state agency action in court. That guarantee is gone. The ranking will catch up.

What takes longer to account for is the question of institutional design. Whether that turns out to be wise depends on assumptions about successors that no legislature can make in advance.

---

Keith Neely is a proud Tennessee native and an attorney at the Institute for Justice, where he litigates constitutional cases in courts around the country. IJ participated in the coalition opposing SB 1958.