Women and the South Carolina Supreme Court

Women and the South Carolina Supreme Court

By Robert Scott

All writers in Op Ed are here to inform and acknowledge issues of importance to our communities, however these writings represent the views and opinions of the authors and not necessarily of The Advertiser. 

Last week’s column addressed three legislative issues coming up this term, each of which presents a “back to the drawing board” moment for the South Carolina Legislature. Three recent court decisions, two at the state court level, ruled that certain South Carolina laws were Unconstitutional. The first of those involved restrictions on abortion rights. In sum, following the federal overturn of Roe vs. Wade, the S.C. Supreme Court ruled that the “Right to Privacy” absent in the U.S. Constitution but present in the S.C. Constitution, legally negates the new laws severely restricting abortion here in SouthCarolina. One of the priorities listed by our Legislature is to change that. To do so, the S.C. Legislature will need either to amend the S.C. Constitution or to change the composition of the S.C. Supreme Court.

It’s not easy to change the S.C. Constitution. What would need to happen is not only for the S.C. House and Senate to agree on new wording regarding privacy – and getting our two legislative bodies to agree with wording about abortion just didn’t happen last year. It might not happen this year, either. Not only that, but such a change would also need to be ratified by a direct vote of the S.C. electorate. The risk, from a Right to Life perspective, is that the S.C. electorate might react just as did the equally conservative Kansas electorate in 2022 (mostly because of a large turnout by Kansas women), and vote down thechange. 

That leaves changing the Court. Unlike the U.S. Supreme Court, there is a mandatory retirement age for South Carolina justices. There is a vacancy coming up this year: the only woman on the court, whose vote was determinative in last year’s pro-abortion ruling, is retiring. There is no requirement, of course, that all viewpoints and all demographics within South Carolina be reflected in the composition of the Court. But there has been a woman on the S.C. Supreme Court continuously since 1988, that is, throughout the adult lifetime of most South Carolinians. Unlike at the Federal level, South Carolina Justices are directly appointed by vote of the Legislature, not appointed by the Executive Branch and ratified by the Senate. And the Legislature is now on track to consider only men for the upcoming vacancy (two women applicants, seeing the writing on the wall, have withdrawn). The result is totally predictable. By mid-year, South Carolina will have an all-male Supreme Court for the first time in 35 years; they will be presented with a new case, causing a review of last year’s pro-abortion ruling;and they will overturn that ruling.

When asked how many women should be appointed to the U.S. Supreme Court to ensure fairness, the late Justice Ruth Bader Ginsburg famously responded, “Nine,” meaning all of them. That may be an absurd answer for the South Carolina court given its history; however, “Zero” is an answer that would be even more absurd. But it’s coming. Be thinking about that, women voters as well as men, during the next South Carolinalegislative election cycle.