That television commercial that talks about how a body in motion stays in motion and a body at rest stays at rest brings the South Carolina Supreme Court to mind.
On one hand, the state’s highest court is obviously busy. During the 2012-13 fiscal year, it received 1,548 cases — everything from criminal appeals to lawyer resignations. It dealt with or disposed of 1,550 cases.
But it started the year with 1,205 cases from previous years and ended the year with just two fewer, according to court records shared last month with the House Ways and Means Committee.
With Wednesday’s re-election of Chief Justice Jean Toal by a 95-74 vote over Justice Costa Pleicones, there’s a good chance the high court will continue business as usual for the next year and a half until Toal steps down when she is 72.
In light of the court’s backlog, including some pretty important work on tap, let’s hope the state Supreme Court does not proceed with business as usual. Justice delayed, as the legal adage goes, is justice denied.
Case in point: The school funding case filed in 1993 — yes, 20 years ago — by poor South Carolina districts that want a fair shake in how they get state money to educate students. After Abbeville School District v. State of South Carolina wound its way for years through lower courts, the Supreme Court got the case in June 2008 — a year before Gov. Mark Sanford redefined what it meant to hike the Appalachian Trail.
Soon after a stinging April 2012 Statehouse Report column questioning the delay, the court ordered arguments to be made again. That happened in September 2012. Since then? The lead plaintiff’s lawyer in the case died suddenly. But from the court: nothing. No decision. Case pending.
What does the court say? It’s having a hard time making a decision. (We, umm, figured that out.)
“We have some cases that come to our court that dramatically bring into play the interrelationship between the branches of government and what the proper roles by way of separation of the powers are amongst the various branches of government,” Toal told the Judicial Merit Screening Commission in November 2013.
“Some cases take an awfully long time to try to speak with anything like one voice. And the more important and the higher the stakes are about the basic structure of government and what a court’s proper role should be and what the General Assembly’s proper role should be, by way of not only making the law but making policy, the more difficult it becomes to arrive at a decision that speaks with fairness and clarity to those kinds of issues.
“So we are struggling and I don’t mind admitting that.”
In his testimony, Pleicones said decisions were a deliberative process. But he added, “I have addressed my concern about the timely processing of cases. That continues to be a concern with me. And it will be a point of emphasis with me as Chief Justice.”
What’s baffling about why the Supreme Court is taking so long is magnified when you consider that the U.S. Supreme Court takes on many, very tough cases each fall. Nine justices hear arguments. By the following June, the court delivers decisions.
It’s disappointing that after six years, the S.C. Supreme Court still can’t come up with a decision in one very important case. Certainly, this is not the norm. But it’s also not abnormal. In a 2012 decision on another case, the court ruled it was unconstitutional for state solicitors to control court dockets. Yet it took more than a year — and some very public complaints by the state’s solicitors — to get any movement on what to do about the decision. (Answer: The court appointed a committee last month to make recommendations. A similar committee recommended rules for criminal procedure a couple of years back. That report collects dust on a shelf.)
Being a justice obviously isn’t easy. But to be effective — and to fulfill job requirements — justices need to make decisions, not kick the can down the road for years and years because of a zeal for unanimity or politics or something else.
Andy Brack is editor and publisher of Statehouse Report. He can be reached at: brack@statehousereport.com.
(843) 766-WEST (9378)
publisher@westof.net
