WE’RE USED TO standoffs between the Legislature and the governor. But it’s rare to see an impasse between the judiciary and the Legislature of the sort that developed last week, when legislative leaders told the chief justice they would ignore the Supreme Court’s order to give it a plan for providing a decent education to poor children.
The last time the Supreme Court and the Legislature found themselves in conflict was after the Legislature created a unified judicial system in 1973, and Chief Justice Woody Lewis took seriously his new role as head of that system and started rewriting courtroom procedures.
The Legislature had always written these procedures, and it had no intention of ceding that authority. So for the next decade, the two branches went back and forth, the court issuing rules, the Legislature rejecting them, the court refusing to acknowledge that rejection and lawyers forced to practice law under both sets of rules.
“Interwoven throughout the dispute on the rule-making authority,” retired USC law school professor James Underwood wrote in a series of books on the South Carolina Constitution, “was a series of decisions by the Supreme Court invalidating legislative acts” on the grounds that they undermined the chief justice’s authority.
When the Legislature rejected court-written reforms for magistrate courts, the Supreme Court overturned the law that spelled out how juries were selected in magistrate court. The justices overturned laws calling for advisory elections for magistrates and allowing local bodies to set magistrate salaries. Then they went to meddling: They struck down a law that required judges to reschedule any court appearances that lawyer-legislators said interfered with their legislative duties.
This was, Dr. Underwood writes, “a hallowed prerogative of lawyer-legislators” — who at that time constituted two-thirds of the Senate and a third of the House — and it clearly was what he had in mind when I asked him last week how the current impasse might be resolved.
“You could get into a really nasty game on this,” he said. “There are things that could be done by the court to individuals in the Legislature — people who are lawyers — but it would be really unseemly.”
The letter Senate President Pro Tem Hugh Leatherman and House Speaker Jay Lucas wrote to Chief Justice Jean Toal last week said that they were committed to improving the public schools after the court’s landmark Abbeville decision in November that said the state was not meeting its constitutional duty to provide a decent education to all children. But they said they would not present a “plan” for those improvements by Feb. 1 or appoint a member to an expert panel that would help the court evaluate that plan, as the court ordered them to do on Sept. 24. They charged that the order set up the court to make law rather than judge it.
The 1970s-era legislators responded to the loss of their courtroom prerogatives with proposals to increase the number of justices — essentially packing the court. We’ve heard echoes of that in the two weeks since the Supreme Court’s latest order in the school case.
Instead of packing the court, the 1979 Legislature created an intermediate Court of Appeals — and the Supreme Court ruled that sitting legislators could not run for seats on the court. This might have been even more provocative than taking away lawyer-legislators’ ability to twist court schedules to their own convenience, because a judicial appointment was their primary retirement plan.
When it became clear that this couldn’t continue, legislative leaders, justices and members of the S.C. Bar worked quietly to develop a compromise. The result was a constitutional amendment, approved by voters in 1984, that clearly allowed the Supreme Court to write court procedures and clearly gave the Legislature the authority to veto the rules, but only with a three-fifths vote in both houses.
Dr. Underwood sees strong parallels between the 1973-1984 crisis and the current situation. In both cases, “you’ve got something that falls in the twilight zone or never-never land between legislation and court activity,” he said. “It took a kind of statesman-like negotiations between the two branches” to resolve the earlier impasse.
What’s missing now, he said, is “a practical reality that will force a resolution with this, like you had with the court procedures: The legislators were in and out of the court all the time, and they couldn’t keep defying them, so I think that kind of eased the path toward reform there. But I’m not sure what would do so here.”
Certainly there are ways to de-escalate the situation: The Legislature and governor could start by filing a motion asking the court to reconsider its order, rather than simply defying it. The court could say it was simply seeking expert advice from the other two branches. It could even “come back with something that’s measured like, ‘If you don’t like this, what do you suggest?’ — that sort of thing where co-equal branches meet in a kind of a summit,” Dr. Underwood suggested.
Ironically, the best hope of a clean resolution might not be between the two co-equal branches of government but between the two parties to the 22-year-old lawsuit filed by 40 poor and rural school districts.
Several representatives of the plaintiffs serve on a House panel that is making tremendous progress toward addressing the problems outlined in the November decision. House leaders and plaintiffs have indicated interest in reaching an accommodation that would allow the task force to keep working, but on a less aggressive timeline than the one the court ordered.
If they can do that, it would allow the court to hold in abeyance its constitutionally questionable expert panel and extricate itself from the dispute, at least temporarily, thus pulling our state back from constitutional crisis and allowing both branches of government to preserve their dignity.
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.