Scoppe: Toals-Pleicones race highlights laggardly pace of SC Supreme Court

Associate EditorNovember 15, 2013 

Cindi Scoppe

— POLITICAL observers long have speculated that the state Supreme Court’s famous “minimally adequate” education decision was much weaker than Chief Justice Ernest Finney wanted it to be because of his ultimately unsuccessful quest for a unanimous ruling.

And now Chief Justice Jean Toal has all but confirmed that the school equity case that spawned that standard has been languishing in her court for five and a half years because of her own quest for unanimity.

Justice Toal was of course careful to issue all the necessary disclaimers when she was asked to explain why we still don’t have a final decision in a case that was filed two decades ago, remanded to a lower court in 1999 by Justice Finney’s 4-1 order, decided at trial in 2005 and heard twice now by the high court as it considers an appeal.

But she left little doubt that her comments were applicable to this case, as she spoke first about her belief that appellate courts should speak “collaboratively and collectively” and “with one voice” in order to give clear direction and then about the added importance that takes on in cases that “dramatically bring into play the interconnection between the branches” and the doctrine of separation of powers.

That’s a pretty good description of the stakes in Abbeville v. South Carolina, a case brought by poor school districts claiming that they are inadequately funded in violation of the state constitution and asking the court to take the extraordinary step of forcing lawmakers to give them more money.

“The higher the stakes on what is the proper role of the court and the General Assembly, the more difficult it becomes to reach a decision,” Justice Toal told the Judicial Merit Selection Commission last week.

Her comments came moments after Associate Justice Costa Pleicones told the same panel that if he succeeded in his equally extraordinary attempt to unseat the sitting chief justice, one of his priorities would be to rectify “our sometimes lack of expedition in the processing of cases.” He noted that “frequently a consensus is had as to the results of the case, but the nuances … are not agreed upon,” causing a delay. He suggested that the court could declare its decision with the full written order to come later “if you are not concerned with unanimity.”

And there, at once, we got a pretty clear explanation not only of why we’ve been waiting an eternity on the Abbeville decision but also why it took two years to issue what turned out to be a unanimous decision rejecting a challenge to the constitutionality of the state’s sales tax exemptions, and why so many other high-profile cases languish well beyond the one year that the American Bar Association sets as the standard for courts to resolve 90 percent of their cases.

We also saw what might be the most significant difference in the way the two would approach the job of chief justice.

I don’t want to overstate the difference here: Justice Toal is not unfamiliar with writing dissents. And though Justice Pleicones is a much more frequent dissenter (he noted that he was “elected by this General Assembly to conscientiously voice my opinion … and not simply to go along to get along”), he said he didn’t want South Carolina’s high court to resemble the U.S. Supreme Court, “where those people go at it with meat axes.” And in what I thought was a particularly telling comment, he said that the court’s decision in one important case “has become my opinion as well” even though he dissented.

What’s notable about the difference is that it is a difference. Because the fact is that it’s hard to imagine that the outcomes of Supreme Court cases would be decidedly different under a Chief Justice Pleicones than a Chief Justice Toal, since the chief gets the same one vote as associate justices.

Of course, I’m not sure that anything even remotely related to judicial philosophy will make much difference in whether Justice Toal gets another two years as chief or the Legislature forces her into early retirement next summer in favor of Justice Pleicones. In the end, it could come down to the much more mundane question of administrative ability and the much more unjudicial question of political ability.

We think of the chief justice as the personification of the Supreme Court, but her more important role might be as the chief executive officer of the judiciary. Although Justice Pleicones bristled at the idea that he is lacking in experience for that, the fact is that Justice Toal has an impressive record on that count — one that no one but a chief justice has an opportunity to amass.

The disparity was painfully obvious in the way the two responded when asked to describe two or three of their accomplishments on the court. Justice Pleicones first said he supposed his opinions would be his accomplishments, then noted how he has acted as “a model of judicial restraint” and offered the fact that “quite a few of my dissents have become the majority opinion” before finally citing a smart case-management system in the 7th Judicial Circuit that he helped devise.

Justice Toal, on the other hand, came prepared with a list of six impressive accomplishments in modernizing the court system on a shoestring budget — work, she said, that she feels compelled to stay on the court two more years to finish.

Even more striking was the ease with which she turned her recitation of accomplishments into a mini-budget presentation, mixing reminders of her frugality as an agency director with hard-nosed arguments for why the state will be better off with specific additional expenditures.

It was an impressive display of political dexterity that should not be required of a chief justice but that, in our legislatively dominated state, too frequently is.

Ms. Scoppe can be reached at cscoppe@thestate.com. Follow her on Twitter @CindiScoppe.

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