AFTER THE S.C. Supreme Court ordered the Legislature to provide a decent education to all children, legislators started talking about the need to elect “conservative justices” to the court.
Even though there are legitimate questions as to whether the constitution actually requires the Legislature to do more than the insufficient job it has done, it was disturbing to think lawmakers might develop a litmus test for judges, based on their indignation over the court’s ruling in Abbeville v. South Carolina.
Read my earlier column: The coming assault on judicial integrity
But a decision this spring in a completely unrelated case suggests that the situation is worse than I imagined. It suggests not only that the Legislature has already succeeded in reversing the Abbeville majority but that legislators’ goal might have been much broader than that.
The goal might actually have been to neuter a court that finally had become willing to serve as a check on legislative power. To stack the court with old-style justices who are perfectly content to let the Legislature ignore the constraints placed on it by our state constitution.
Admittedly, this is a sweeping conclusion to draw on the basis of a single opinion. But that opinion was such an extraordinary departure that it demands attention.
One of the many ways our Legislature violates the state constitution is by using a procedure called bobtailing, or logrolling, to cobble together unrelated bills and pass the whole massive result as one take-it-or-leave-it proposition that no one dares leave. This is the process that gave us video gambling and a bribery-tainted retroactive tax break and re-opened the Barnwell low-level radioactive waste landfill to the nation. It’s how many of the sales tax exemptions came to litter our tax code.
For several years, the Supreme Court has been striking down bobtails as violations of the state constitution, which says a bill may have only one subject. Seven years ago, the court declared that it would no longer simply strike down bobtails: It would strike down the entire law that was bobtailed.
Then last year the Legislature bobtailed the state budget with a proviso that allowed the governor to continue appointing the director of the Transportation Department. A lawsuit was filed, and this spring the court unfortunately but correctly struck down that bobtail. But rather than invalidating the entire state budget, as the court had promised, it modified its 2009 decision to carve out an exception for the budget bill.
This is not news: I wrote about it in May. What is news, or at least what hasn’t gotten sufficient attention, is the fact that the newest justice — the one elected after calls for a “conservative justice” — dissented from the clearly correct finding that the Transportation Department bobtail was unconstitutional. And his dissent is deeply disturbing.
Justice John Few was probably right to say the court went too far in its order seven years ago. And he makes a legitimate point when he says there’s something disturbing about the court reversing itself after just seven years — or, as he puts it, finding it necessary “to change the law so frequently.”
But his back-up remedy for this problem was for the court to simply declare the proviso unconstitutional and move on, without explaining why it wasn’t striking down the entire budget. That is, he would have the court issue an order that is inconsistent with its earlier order, without so much as acknowledging or eliminating the inconsistency.
Now, inconsistency is common in the political branches, but judicial decisions are built one atop the other, based on precedent. Having inconsistent precedents causes chaos — and invites all sorts of mischief and all sorts of extra lawsuits.
But that’s only mildly troubling. What is deeply disturbing is Justice Few’s preferred remedy: The court shouldn’t have decided the case at all, he writes, because “this case does not present a question of sufficient public interest to justify this Court hearing it in our original jurisdiction.”
That is, Justice Few believes that a case where the Legislature has overstepped its bounds, violated the state constitution, acted in a way in which it has no authority to act — is unworthy of the court’s time.
There’s just one little problem with that idea: If the court doesn’t address this sort of violation, no one will, because no one else can. The court is the only entity that has any power to stop the Legislature from violating the constitution. The governor can try, but with a two-thirds vote, the Legislature can override a governor’s efforts to rein it in. And it routinely does just that.
Many of us would argue that the main reason we even have a Supreme Court is to serve as a check on the power of the Legislature.
And our conservative new justice says that’s not worthy of the court’s time. It makes you wonder what Justice Few believes is worthy of the court’s time — and what else he is willing to let the Legislature get away with.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter @CindiScoppe.