Cindi Ross Scoppe

Scoppe: Countdown to crisis? Leatherman-Lucas letter to Toal puts state just one step away

SC Chief Justice Jean Toal and others members of the Supreme Court attend the State of the State address in January in the House chambers; they might not feel quite as welcome next year.
SC Chief Justice Jean Toal and others members of the Supreme Court attend the State of the State address in January in the House chambers; they might not feel quite as welcome next year. tdominick@thestate.com

WHEN AN individual refuses to comply with a court order, it’s called contempt of court, and the court can jail the contemptuous party. When a legislature does it, it’s called a constitutional crisis, because there is no clear way to resolve the standoff.

Haul the legislators to jail? Besides being unseemly and insanely provocative — particularly in a state such as South Carolina, where the Legislature elects the judges for fixed terms, writes the judges’ budget and even has veto power over their operating rules — there’s the question of whose police force the court would appropriate.

The term “constitutional crisis” is usually invoked inappropriately, in an embarrassment of hyperbole that has become de rigueur in the era of hyperpartisan 24/7 cable TV and social media. An actual crisis — where two branches of government are in dispute over which has authority and the third branch lacks the authority to resolve the impasse — is a rare thing.

But we’re headed for one in South Carolina since House Speaker Jay Lucas and Senate President Pro Tem Hugh Leatherman sent an extraordinary letter to S.C. Chief Justice Jean Toal on Tuesday, informing her that they would not obey the court’s order to submit a plan by Feb. 1 for making sure children throughout South Carolina get a decent education.

Our constitutional crisis could resolve itself before a preliminary court deadline on Oct. 15, and Mr. Lucas has expressed what might not be entirely unrealistic confidence that it will. But the last time South Carolina had an impasse that even approached this magnitude was in the 1970s, and it took years for the Legislature and Supreme Court to come to a negotiated settlement. That standoff was of an entirely different flavor: Instead of ordering the Legislature to act, the court was trying to claim authority the Legislature held.

When I asked one constitutional expert if he could recall any other impasses over the court’s efforts to make the Legislature do something, he had to leave the state and travel back across two centuries for an example: “Andrew Jackson after the decision by the Supreme Court concerning the Cherokee Indians. Said to the Court ‘now you have made your decision. Enforce it.’”

It’s common for the Legislature to ignore court orders to stop doing something; it routinely passes single-county laws, for instance, even though judges have grown hoarse reminding it that such laws are unconstitutional. But there’s a clear remedy for those conflicts: Someone files a lawsuit, and the court strikes down the offending law.

There is no such remedy when the court tells the Legislature to do something, and it refuses. That’s one reason our court doesn’t do such things; it suggests, sometimes strongly, but looking back a half century, I haven’t seen a case of it actually ordering lawmakers to act. Until now.

A 60-something constitutional authority told me that “in my lifetime, I don’t remember a legal confrontation like this” and worried that “both sides are really, really treading on thin ice in terms of painting themselves into a corner.”

The conflict is fraught with political and constitutional problems. Politically, far too many legislators don’t recognize that they need to provide a decent education to all children, much less that the constitution requires it. Constitutionally, Mr. Lucas and Mr. Leatherman make an extremely compelling case that the Supreme Court overstepped its authority when it ordered the creation of an expert panel to help it judge the state’s plan.

The superintendent of education is to serve on the panel, along with one person named by the plaintiffs and one named by the state; the court set the Oct. 15 deadline for those appointments, so that’s when we will officially be in crisis if Mr. Lucas and Mr. Leatherman stick to their refusal to participate.

James Underwood, a retired USC law professor who wrote a highly respected series of books on the S.C. Constitution, told me that beyond their general objection that the court is violating the separation of powers doctrine, legislators could point to Article 3 of the constitution, which allows the House and Senate to establish their own procedures. By creating the expert panel, he said, the court seems to “impose a superstructure on top of the procedure provided by the branches themselves, and forces the Legislature to channel its work through this superstructure.”

So let’s assume the court did in fact overreach: What’s a Legislature to do in such a case? “I don’t know; I don’t know,” one of the state’s leading legal minds said, noting that the court’s order was “unorthodox” and the legislative leaders’ response “really is incredible.”

Actually, while there’s no clear follow-up if it doesn’t work, there is an obvious first response: File a motion for reconsideration. It’s what Sen. Leatherman and Rep. Lucas should have done instead of writing that letter; it’s what they, along with Gov. Nikki Haley, need to do now. That keeps the dispute in the proper venue, and it gives the court a vehicle to moderate its position. That in turn gives legislative leaders the opportunity to do likewise.

Both elements are essential to averting a constitutional crisis, because, as Dr. Underwood warned, “The Legislature and the court have put their prestige on the line, and in a sense kind of thrown down the gauntlet.”

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.

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