THE SOUTH CAROLINA SUPREME COURT'S "SLIPPERY SLOPE TO IRRELEVANCE"
The Chief Justice of the South Carolina Supreme Court, Donald Beatty, ended his opinion in yesterday's DECISION (p. 50-51) with two big conclusions. First, that the 2021 and 2023 state laws on abortion were virtually identical and that the court had already declared the 2021 law to be unconstitutional because of its gross violation of the right to privacy; and second, that the supreme court had abdicated its power to the state legislature. Both of these are very serious issues that will have profound ramifications for the people of South Carolina for years to come. Beatty wrote: This outcome is not an affirmation of the separation of powers, as the majority declares, but an abdication of this Court's duty to ascertain the constitutionality of the challenged legislation. He ended with this warning: This lack of judicial independence renders a court powerless and places it on the edge of a slippery slope to irrelevance.
It seems to me Beatty is saying the SCSC has become nothing more than a puppet of the state legislature. Therefore, it is one more political institution controlled by the social reactionaries who have a super majority in the SC state assembly.
One will recall that SC is one of only two states in the United States in which the state legislature elects all the judges and justices in the state court system (federal courts are under national and not state jurisdictions). The five justices of the SCSC are elected by the legislature for ten year terms and may be reelected any number of times until the mandatory retirement (end of the calendar year in which the judge/justice reaches the age of 72). The legislature also chooses the chief justice. The present Chief Justice, Beatty, has to retire by Dec. 31, 2024. Before then, the assembly will elect his replacement. Obviously no one objectionable to the reactionary majority will get onto the bench.
The increasing politicization of the state courts was reflected in the courts' handling of the church schism case. The majority of the SCSC strained hard to find ways to give the local properties to the separatist parishes. It took them five years but they did remove 21 local churches from Episcopal Church ownership after the initial SCSC decision of 2017 had recognized 29 of the 36 in question as property of TEC. Of the 29, TEC wound up with 8. The fundamental issue in contention of the schism was the rights of homosexuals to have full equality and inclusion in the life of the church, the TEC in favor and the separatists opposed. The SCSC was obviously reflecting the will of the socially reactionary state legislature.
It must have been quite a surprise, then, when the SCSC issued a long and detailed decision on January 5, 2023 declaring unconstitutional the 2021 law of the state assembly which banned abortions after six weeks. Justice Kaye Hearn, the only woman on the SCSC at the time, wrote a masterful opinion declaring the law to be an outright violation of privacy and equal protection under the law. She was joined by Beatty and Few who supported her reasoning. Justices Kittredge and James wrote dissenting opinions defending the legislature's power to override a woman's privacy in defense of an embryo/fetus's rights. (BTW---there were five separate opinions in yesterday's decision. Each justice contributed his/her own opinion. When the SCSC issued its decision in the church case, on Aug. 5, 2017, it too had five separate opinions. At that time, the breakaways declared that, because there were five opinions, the court was "fractured" without a majority---absurd then as now. There were clear-cut majority decisions.)
Even though the majority in the assembly must have been stung by the court's rejection of the 2021 abortion law, they had only to bide their time, and not for long. Hearn had to retire on Dec. 31, 2022. The legislature lost no time. On February 8, 2023, they elected a white man as her replacement. This made the SCSC four white men and one black man (Beatty---to retire on 2024). SC is the only state in the union with an all-male supreme court. It was all so obvious.
Then, the legislature passed a new abortion law that, according to the Chief Justice was exactly like the earlier law---a six week ban. They made only a few semantic changes while ignoring the SCSC decision of Jan. 5. The court accelerated the new law's appearance before the bench. Seven months later (remember the SCSC held the church case for five years), and voilà the SCSC revokes its Jan. 5 decision and approved the new law.
The vote in the August 23 decision was 4-1. Only the Chief Justice voted to keep the earlier decision. The other justice who had voted in the majority flipped to the reverse. Justice Few had agreed with Hearn on Jan. 5 that the 2021 law was a violation of privacy. This time he changed his mind. He held the new law gave "reasonable" protection for privacy. He voted with Justices Kittredge and James to uphold the 2023 law even though the 2021 and 2023 laws both virtually banned abortion after six weeks. To no one's surprise, the new justice, D. Garrison Hill, joined Kittredge, James, and Few making it 4-1. The majority opinion was written by Kittredge who had contributed a long dissent in the Jan. 5 ruling. There is talk he is the favorite to succeed Beatty as CJ. If he is angling to replace Beatty, his roles on Jan. 5 and Aug. 23 should improve his chances in the state assembly.
As the church case, in the short run, what the SCSC has done is a smashing victory for the social reactionaries in South Carolina. The court has struck major blows against human rights for homosexuals and for women in the state, all for the sake of preserving some antique vision of the proper social structure. There is no sense in pretending otherwise. However, as Chief Justice Beatty has pointed out, the long term cost may be profound. The SCSC has greatly weakened its standing as a co-equal branch of the government by shamelessly reversing itself, apparently to please the majority in the state legislature, who after all put the judges on the bench. We should worry, along with CJ Beatty that the SCSC is on the road to irrelevance. Its recent actions in the church and abortion cases strongly suggest the thorough politicization of the SCSC. So much for Montesquieu's theory of checks and balances.
In conclusion, all this leads us back to the big picture which we should keep in mind. Equal rights for homosexuals and women are parts of the overall culture war raging in contemporary America. The great democratic revolution of post-WWII America brought us giant steps in equal rights and inclusion for blacks, women, homosexuals, and other minorities. That ongoing evolution is happening at the same time that America is changing into a multi-cultural society composed entirely of minorities. This reality has produced a backlash of the social elements that had monopolized power and now feel threatened, namely the white male. This anti-democratic backlash has control of practically all of the southern state legislatures and offices.
The reactionaries in America have succeeded in overturning a woman's right to control her own body. However, this may well be the bridge too far. There are signs all over the country that women are not going to settle for this state of affairs. The vast majority of women, and in fact of Americans, favor sensible laws to protect a woman's right of autonomy and privacy. It looks more and more as if the momentum nationally is shifting back to the democratic side. Apparently the counter-revolution is not strong enough to sustain its victory in the courts. Where all this goes from here is an open question. Having failed in the last national election, extreme counter-revolutionaries turned to violence. They tried to overthrow the government while threatening the lives of the elected leaders. They could try again.