Twenty-eight days before she retires from the court she has been a part of for 27 years and led for almost 16, Chief Justice Jean Hoefer Toal is content.
“I have been so fortunate to be a part of the generation into which I was born,” says Toal, 72, sitting in a chair at the front of the South Carolina Supreme Court courtroom, where she has heard and presided over some of the state’s biggest legal battles of the past quarter-century.
“We came to law school at a time when the Vietnam War was at its height, when the quest for equal opportunity for all people was on the front burner. It caused us to be very serious about what we wanted to do. We didn’t feel we should wait. We wanted to take the South Carolina that we loved, that wasn’t there yet, and create a new South Carolina.”
Over the years, in that courtroom, Toal, who grew up in Columbia, has been a major part of making a new South Carolina. She has written opinions in disputes where lives and the environment were at stake, where billion-dollar gambling interests were trying to maintain their enormous influence on the state, where children’s educational futures were on the line and where the interests of big business, powerful professions and the free market were pitted against those of consumers.
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But Toal’s life has always been about far more than legal cases, as a new University of South Carolina Press collection of essays – called “Madam Chief Justice” – chronicles.
For more than four decades, she has been a game-changer in multiple arenas, pulling off the high-wire act of being a successful revolutionary for civil rights and women’s and other causes while inhabiting the conservative, hidebound and sometimes rarified world of South Carolina’s political and legal classes.
Her stature is such that on Thursday, she was one of a small handful of speakers – along with Vice President Joe Biden – who were permitted to give speeches at a farewell dinner in Charleston honoring longtime Mayor Joe Riley, who is retiring. Two of Toal’s friends in high places, U.S. Supreme Court Associate Justice Sandra Day O’Connor and current Associate Justice Ruth Bader Ginsburg, each wrote essays about Toal for Madam Chief Justice.
“Championing a cause – be it civil rights, women in the law, or court reform – is one thing. Making a difference, making changes happen, is quite another,” write S.C. historian Walter Edgar and U.S. Judge Joe Anderson, who co-authored the book’s closing essay.
The 189-page book, likely to be a how-to guide for lawyers and political strategists as well as a historical reference book, contains 23 essays, divided among Toal’s impacts in various areas as well as personal and professional glimpses by colleagues.
One of the most personal chapters is by Toal’s adult daughters, Jean and Lilla, who detail what it was like growing up in a family with an extraordinary mother who lives her life at full throttle and who, at the age of 69, took a notion to go paragliding off the Isle of Palms.
The one thing Toal did not want as she retired was a book about her.
“I had to call her three times starting a year and a half ago before she reluctantly agreed to let us do it,” Anderson recalled last week, describing Toal as a “transformational” figure on the state legal and political stage. “I finally convinced her it wasn’t just her – it was a story that needed to be told. She’s been around a lot of battles.”
Eventually, Toal consented. She read all the essays, but exercised no editorial control, said USC School of Law professor Lewis Burke, the book’s co-editor
“She might have changed a comma here and there, or corrected a citation, but she made no changes in what was written,” Burke said.
Some people leave their mark in one or two areas. Over the years Toal:
▪ As a justice, joined or wrote opinions directing the setting of minimum educational standards in state public schools and directing more funding to come from the General Assembly.
▪ Took the lead through court opinions in stamping out what she described as the addictive gambling scourge of video poker.
▪ Was a pioneer for women in the law, both as lawyers and judges. As a fledgling lawyer, she took on and won the case of Vickie Eslinger, a young law school student who wanted to be a page in the S.C. Senate but was told she couldn’t because she was female. One of Toal’s favorite expressions is “Leave the ladder down,” meaning women who ascend politically or legally must serve as mentors.
▪ Pried tens of millions out of the General Assembly and Congress to get money in the Judicial Department’s budget for more judges and to put the state’s court records and dockets on a computerized system in large part accessible by the public.
To persuade the Republican-majority General Assembly to spend more money on lawyers and judges, Toal – whose specialty is framing issues in such a way that people come to agree with her – devised a strategy whereby she argued that a modern, efficient judiciary is essential to getting businesses to come to South Carolina – an assertion that won over business-oriented Republicans.
“Her efforts have brought South Carolina’s judiciary from its somewhat closed, quill-and-ink operations to the forefront in technology,” writes former Gov. Richard Riley in another essay.
▪ Authored or wrote numerous decisions upholding open meetings and open public records. She also made briefs filed with the Supreme Court available online and opened up her courtrooms to students by the use of technology and other methods.
GOING ‘TO CHANGE THE LAW’
Despite her pro-open government record, Toal in 2014 joined in a 3-2 ruling that autopsy reports aren’t public records.
Critics called the ruling perplexing, since the reports can play an important role in determining the facts in officer-involved shootings and other deaths of high public interest. They say coroners, who issue the reports, could redact someone’s personal information before releasing them.
In an interview, Toal said she had to go by the law in making autopsy reports off-limits to the public.
Columbia lawyer Jay Bender, who argued and lost that case for The (Sumter) Item newspaper, said the decision case shows Toal doesn’t play favorites.
“It’s an example of her integrity,” said Bender, a close Toal friend and the state’s pre-eminent legal advocate in open government cases.
Bender believes Toal’s essential nature is that of a fighter.
“If Toal were in the movies, she would be tough and combative Jimmy Cagney,” writes Bender in one of the book’s essays.
Back in the 1970s, when the state’s first Freedom of Information Act was passed and Toal was a lawyer-legislator in the General Assembly, Toal lost an open meeting case before the S.C. Court Court, Bender writes. The justices basically ruled that public bodies had a right to consider budgets in secret.
After losing the case, Toal walked out of the courtroom. When asked where she was going, Toal replied, “I’m going across the street (to the General Assembly) and change the law.” She did. Today, it is against the law for public bodies such as school boards and county councils to consider budgets in secret.
In conversation, Toal can get fiery when pressing a point, drawing close to the person she’s talking with and throwing off a mix of logic and facts delivered at high velocity.
Asked about her assertive temperament, Toal smiles. “I very much concede that I understand the power of controlled aggression,” she says, explaining that it’s part of a trial lawyer’s psyche to be fierce. “Sometimes you need to get people’s attention. But you don’t need to beat them over the head with it. But yes, passion needs a face.”
At Agnes Scott College in Atlanta, she played catcher on the softball team and goalie on the field hockey team for four years. “Goalies and catchers have this similarity – they’re not scared to take the ball, whether it comes in your nose or your noggin or wherever,” Toal says.
In legal chambers, Toal channels her intensity in a different way.
“She was truly a force of nature. She never stopped,” writes Columbia lawyer Blake Hewitt in one essay about his experience as one of her Supreme Court law clerks. “I have never known such persistent diligence, such serial focus and such relentless determination to succeed.”
At times, Toal uses what might politely be called salty language.
In one of the book’s essays, U.S. Judge Cameron Currie recalls meeting Toal some 50 years ago. “Jean addressed her younger sister in language I had never heard before. I was terrified.” Over the years, Currie became an admirer of what she calls “the strength of (Toal’s) personality and the force of her intellect.”
That intellect is what stands out to I.S. Leevy Johnson, a Columbia lawyer who graduated from law school with Toal and served with her in the S.C. House of Representatives in the 1970s.
In that era, Johnson said in an interview, there were three representatives other lawmakers went to when they wanted to clarify complex issues: Bob Sheheen, who went on to become House Speaker, Henry Floyd, who now serves on the U.S. 4th Circuit Court of Appeals, and Toal.
In the new book, Johnson, a close friend, writes in an essay about another side of Toal: “a devoted wife (to husband Bill, a retired lawyer) a mentoring mother of her two daughters, and a doting grandmother of her two grandchildren.”
‘IRRITATED SOME PEOPLE’
Over the years, Toalʼs manner “has irritated some people,” says Rep. Walton McLeod, D-Newberry, a lawyer, businessman and former counsel for the S.C. Department of Health and Environmental Control from 1968 to 1994.
McLeod, who observed Toal in the courtroom, says he regarded her aggressive manner as a facade to advance her cause.
“Sheʼs a great actress,” McLeod says. “She would put on a mask of umbrage. It was a pattern. Some people canʼt tolerate that, but it didnʼt bother me. Now, I like pushy people – they cause you to accomplish more.”
His takeaway: “Iʼm kind of proud of Jean Toal, and Iʼve admired her brains and ability. Even when sheʼs aiming at you, you canʼt help but admire her stuff.”
When something or someone stands in the way of what she believes is the law, Toal doesnʼt hesitate to charge ahead.
On June 30, 2000, when most people thought that state law from July 1 forward was going to declare the machines used for video poker illegal, then-Circuit Court Judge Gerald Smoak – at the behest of video poker lawyers – issued an order in Jasper County prohibiting the State Law Enforcement Division from enforcing that law. At the time, video poker was a powerful, $2 billion a year industry in the state, with tens of thousands of machines or parlors.
Later that day, then SLED-chief Robert Stewart brought the judgeʼs order to Toalʼs attention. Toal, who was at home in her kitchen, instantly convened an emergency telephone meeting of a majority of justices. Stewart brought the order over, Toal hand-wrote an order vacating Smoakʼs order, and the justices voted to approve it.
The next morning, “SLED agents crossed the state enforcing the ban on video gambling,” now-U.S. Judge Richard Gergel wrote for the book in an essay called “An Unrelenting Judicial Warrior in South Carolinaʼs Video Poker Wars.”
Recalling those days, Stewart in an interview says, “Video poker was a major problem in South Carolina. Addiction was causing suicides, children left in cars, and people werenʼt robbing banks any more, they were robbing all these cash businesses that had video poker machines. The Mafia was coming into the state to launder money.”
For Toal, Stewart says, “Right is right, and wrong is wrong. Sheʼs going to stand up for whatʼs right and follow through with it.”
That sense of right does seem to be inborn.
When she was 10, the U.S. Supreme Court handed down its landmark decision of Brown v. the Board of Education of Topeka, Kan. Its mandate to admit African-Americans to public schools shocked South Carolina whites, who lived in a segregated society whose codes were enforced by violence if necessary.
At the time, when Toal heard her grandmother complaining about the U.S. Supreme Court decision, she asked, “What’s wrong with that? What would be wrong with going to school with Negro (the term used by polite white people in the 1950s) children?” Her grandmother became very angry, Toal recalled.
In 1961, as a Dreher High School student and member of a young people’s interracial, interfaith group, Toal saw what became a mass arrest of 181 peaceful black residents singing patriotic songs on the S.C. State House steps, as “vicious, mean white people screamed and yelled every kind of imprecation you could think of.”
Toal went to their city trial, where she saw South Carolina’s great African-American civil rights lawyer, the late Matthew Perry, lose their case. But Perry appealed and won a great victory in the U.S. Supreme Court, when the arrests were overturned because, the court ruled, peaceful protesters had a right to freedom of speech.
Despite that experience, Toal didn’t think of being a lawyer until, while a student at Agnes Scott College, she signed up for a constitutional law class at Emory University.
“I was going to be a teacher, which is what most women did in those days,” Toal recalls. “But after two weeks, I was hooked. I went and applied to law school.”
Over the years, Toal has confronted personal dilemmas. Asked how she squared being Catholic, a religion opposed to the death penalty, with being a justice whose decisions have sent people to death row, she said, “That’s been a tough issue for me.” But “some acts that are so violative of the basic compact with society that if you knowingly do those acts you must face the consequences.”
Asked for advice to young lawyers, Toal said they should remember that good work is the result of hard work.
“Staying to the task and doing the unlovely work it takes to make their product a success is an awfully big part of the success a young person can achieve in the profession – not going for the slick and easy and the quick, but spending the time it takes to to get the small things right.”
When she retires from her $148,000-a-year job, Toal won’t go into private practice, where she could easily command a six-figure salary. Instead, she’ll go on what is called “active retired status,” where she will fill in for trial judges or justices when needed, as many state and federal judges have.
Toalʼs last year on the court almost didnʼt happen. Traditionally, incumbent justices and judges are re-elected by the 170-member Legislature. Traditionally, they often retire nearing the retirement age of 72.
But in 2014, as Toalʼs term expired, associate justice Costa Pleicones announced he was running for the chief justice seat. The result was a historic contest – no sitting chief justice had been challenged in the modern era – between two respected jurists. Pleicones came within 11 votes of winning.
When The State newspaper ran a story about Toal’s hotly contested race – reportedly the first in 100 years in which a chief justice was opposed in a bid for office – to win another term as Chief Justice, the headline on the story included the phrase “Game of Thrones.”
The phrase, from a popular book and television series, angered Toal, who upbraided a reporter, saying, “Listen, this is not a game to me.”
Asked last week why she took that headline so seriously, Toal elaborates.
“The law is a sacred thing,” she says. “We have premised an entire civilization on the notion that there is a tiebreaker (the courts) – and it’s the fundamental legitimacy of the rule of law itself.
“It’s not built on what’s popular,” she continues. “It’s built on a certain assumption that there is a baseline of order and values that all will abide by – even if all do not agree.”