Ex-SC House speaker tries to unseat Supreme Court justice
- SCCLR Newsletter
- Nov 22
- 4 min read
Updated: Dec 3
By: Cindi Ross Scoppe
Well now: It looks like we might have an interesting race for the S.C. Supreme Court after all.
By interesting I mean “can’t guess how it will turn out,” and until Monday, I had my doubts.
With the Legislature already angry over Associate Justice John Few’s vote to strike down its initial six-week abortion ban (hold that thought) and over the entire court's decision to take $18,000 a year out of every legislator’s pocket, and with the very smart and popular former Speaker Jay Lucas running against the incumbent, I figured Mr. Lucas was a shoe-in.
But then Mr. Lucas opened his mouth — and told the screening committee he intends to serve a full 10-year term if elected. Even though he’ll be 80. And the mandatory retirement age — or at least what we’ve always thought was the mandatory retirement age — is 72. In the process, he got more than a little prickly over questions along the lines of: "Help us explain to voters why electing you wouldn't be politics at its worst."
As The Post and Courier’s Nick Reynolds reports, Mr. Lucas informed the Legislature’s screening panel that everybody has misinterpreted the retirement law. That retirement age, he argues, applies only to people who participate in the extremely generous judicial retirement system, and he won't.
Major questions
It’s hard not to read that law the way he does — or to wonder: If the Legislature actually intended to make judges hang up their robes at age 72, why would it put that in the part of the law that deals with the retirement system, and not the part that deals with, say, judges? It brings to mind the U.S. Supreme Court’s major questions doctrine: If the Congress intended to pass a really important law, it would do so in a really clear way so the courts wouldn't have to infer what lawmakers were implying.
The upshot seems to be that if Mr. Lucas is elected, somebody will sue him to challenge his interpretation. And he will have to recuse himself and ask his fellow justices to rule in his favor. If he wins, we'll have judges staying on the bench much longer, and fewer judicial plums for legislators to hand out to their favorite lawyers. And it’ll just create a big mess. Which means Mr. Lucas must be a less attractive choice today than he was a week ago.
I’m a big Jay Lucas fan. He might be the only member of the House leadership teams since Bob Sheheen, David Wilkins, Jim Hodges and Billy Boan who truly believed in the restructuring effort to give executive power to the governor — which I've supported since the Campbell administration and whose last major victory, under Mr. Lucas’ persistent leadership, was to turn control of the Transportation Department over to the governor. And he does indeed have a brilliant mind — legal and otherwise. I have no doubt he'd be a good justice.
By contrast, I’ve spoken to Mr. Few once, for less than a minute, when we ran into each other in the Statehouse lobby. He has fascinated me since his disturbing early opinions repudiating the idea of the court forcing the Legislature to obey the constitution, through his appropriate nagging of the court to explain its ruling in the Jeroid Price case and, of course, that abortion ruling.
Despite Mr. Lucas’ defensible defense, though, there’s something uncomfortable about the idea of the Legislature electing a speaker just four years removed, with practically no judicial experience, at a time when lawmakers are upset with the whole court over the legislative pay case. And when they're upset with Mr. Few because of the abortion ruling.
Exposing laziness
That earlier case deserves a different kind of attention than it's getting, because it’s not simply about Justice Few voting with two liberal justices to strike down the six-week abortion ban. He did that. But in so doing he gave the Legislature clear guidelines on how it could tweak the law to make it constitutional — and the Legislature did precisely that. Then he and three colleagues voted to uphold the new law.
If anything, abortion opponents ought to thank him, because he gave them an excuse to demagogue the issue for another session.
In fact, his sin wasn’t voting to strike down the ban. His real sin was exposing the Legislature’s sheer laziness.
The trouble, as he saw it, was that the abortion bill said one of its goals was to ensure that women could “make an informed choice about whether to continue a pregnancy.” That, he wrote, created a right for women to make that informed choice, which as a result the Legislature had to balance against its interest in protecting the fetus. But there was nothing in the record to suggest that legislators even knew how many women know they’re pregnant by six weeks, so no basis for balancing those two interests. The lack of balancing, he concluded, made banning abortions after six weeks an unconstitutionally unreasonable invasion of privacy. Which could be remedied by doing little more than removing that language.
There was no legal reason to include that language in the law; just sound-bite reasons. As I wrote at the time, his opinion exposed the fact that legislators had taken a profoundly important matter with lifelong consequences for the woman and the fetus and treated it like any other cheap culture-war issue, where the details are irrelevant, and all that matters is preening for the camera and pandering to voters. It reeked of sloppiness, arrogance and an unserious approach to the law.
Justice Few has more sense than to be that blunt. Instead, he simply told legislators on Monday that “what the Legislature says about its goals, and why it’s trying to achieve its goals, is important.” That'll never be a popular thing to tell legislators, but it might not seem as offensive now as it did a week ago.
