Finality of rule of law distinguishes American system, SC chief justice says

Posted on September 13, 2011

(from left) Dr. David Norman, Sen. Floyd Nicholson, Sen. John Drummond, SC Chief Justice Jean Toal and Dr. Ashley Woodiwiss

Jean Hoefer Toal, chief justice of the South Carolina Supreme Court, spoke to an audience of Erskine College students and faculty as well as members of the wider community Sept. 12.

Her address, “Celebrating the U.S. Constitution: A View from the South Carolina Supreme Court,” was delivered in Memorial Hall on the Erskine campus and served as part of the school’s celebration of Constitution Day.

Toal took her listeners back to the year 2000 and a time of “constitutional crisis in this country” over the litigation resulting from the Bush-Gore election. “Florida was where everything hung in the balance,” she said.

“People who run elections love landslides,” Toal observed, but in close elections, predictions abound concerning how judges will decide, based on their political party or who appointed them.

In the Bush-Gore case, the chief justice asserted, “Those judges were trying to do the best job that mere mortals can. The media’s spin was that it was a political decision.”

Calling the election dispute “an astounding national civics lesson,” she urged students to check out the documents of the case. “Look and see how hard those judges struggled,” she said.

“The reliance we have in the United States on the finality of the rule of law is unique in all the world,” Toal said. “In so many other countries the outcome would have been decided by violence, but we live by the rule of law even when we disagree.”

She said that trial by jury was viewed by the founders as a safeguard against government tyranny. “In our system, it is still true that no citizen can be deprived of life, liberty or property unless a group of peers—a jury—so decides.”

In the system of state courts, which decide a large percentage of cases in the country, pace and duration of trials is an important factor, and South Carolina does better than most states in this area, Toal said. “More cases are filed per judge in South Carolina than anyplace else,” she said. “We do more with less.”

South Carolina’s judges are selected by the state legislature, and a screening procedure and citizen panels also play a role in the process. “While no system is perfect, I’d put South Carolina’s system up against any other,” the chief justice said. “I’ve been around, and I can tell you, South Carolina has not had the corruption or bribery seen in other states where judges are appointed or elected by popular vote.”

Toal ended her talk with a challenge and a prediction.

“Our system will either succeed or fail because of what you students do in the near future,” she said, encouraging students to get involved. “This system works, but it is so fragile.”

She predicted that 20 years from now, “someone in this room will be arguing a case before the South Carolina Supreme Court.”

Before beginning her formal remarks, Toal acknowledged her Associate Reformed Presbyterian (ARP) and Erskine connections. She married into an ARP family, she said, and her husband’s grandmother went to school at Erskine. “Think of how unusual it was in those days to encourage the education of women,” she said.

Due West native Jean Galloway Bissell, who attended Erskine and later graduated from the University of South Carolina, served as Toal’s mentor. Bissell, the first woman from South Carolina appointed to a federal judgeship, finished college and graduated from the University of South Carolina Law School before she was 21.

“She never forgot where she came from,” Toal said of her mentor.

Toal spoke briefly with students before taking the podium, discussing issues related to pornography, the Internet and social media. She also took questions following her address concerning voter identification, the anonymity of social media, and originalist interpretation of the constitution.

Toal began her service as an associate justice on the Supreme Court of South Carolina in 1988, having practiced law for 20 years. Toal is the first woman, the first native Columbian and the first Roman Catholic to serve on the state’s highest court. She has served as chief justice since 2000.

The chief justice’s visit was hosted by the Drummond Center for Statesmanship at Erskine College, established to promote and perpetuate statesmanship in South Carolina. She was introduced by Grady Patterson Professor of Politics Dr. Ashley Woodiwiss, who serves as director of the Drummond Center. Sen. John Drummond, for whom the Drummond Center is named, was in the audience for the event.