Academic journal article Albany Law Review

The Untouchables: The Impact of South Carolina's New Judicial Selection System on the South Carolina Supreme Court, 1997-2003

Academic journal article Albany Law Review

The Untouchables: The Impact of South Carolina's New Judicial Selection System on the South Carolina Supreme Court, 1997-2003

Article excerpt


Although South Carolina has perennially been considered one of the nation's most rebellious states, the South Carolina Supreme Court has historically been extremely deferential to precedent. (1) However, in 1997, the South Carolina judicial system experienced a reform that significantly changed the South Carolina Supreme Court's traditional deference to past precedent. (2) As a result of a South Carolina Constitutional amendment, jurists are no longer solely elected by the General Assembly. Rather, a Judicial Merit Selection Commission reviews the qualifications of all applicants and nominates the three most qualified candidates. (3) These three nominees are then voted on by the General Assembly, and the nominee with the highest number of votes is appointed to the bench. (4)

While some scholars argue that this change has done little to eliminate the highly political system that the previous method of judicial selection legislative election--promoted, a look at the court's decisions since the implementation of the new selection system tells a different story. (5) In contrast to the decade prior to the amendment where the court only overruled its own precedent twice, in the period between 1997 and 2003, the South Carolina Supreme Court has overruled its own precedent thirty-six times and defied the United States Supreme Court twice. (6) These numbers attest to the fact that the current bench now decides cases with a sense of independence from the General Assembly, resulting in decisions based upon their individual ideologies, rather than the political tides of the General Assembly. The willingness of the new bench to overrule past precedent indicates that, at least to some degree, the justices are shielded from the political backlash which can result from challenging the status quo in South Carolina.

By examining criminal cases from 1997 through 2003 in which the majority chose to overturn previous case law, as well as discussing the rationale behind the court's decisions to disobey the United States Supreme Court, this study seeks to demonstrate the new trend toward judicial independence, while also identifying the underlying ideology of each jurist. Ultimately, it will be apparent that although the change to the judicial selection system resulted in greater independence for the justices, this independence came at the cost of accountability to the public or the General Assembly: arguably the only two bodies through which jurists are forced to consider the principles of majoritarianism.


Prior to 1997, the South Carolina General Assembly had statutory authority to elect and re-elect the state's judges and justices. (7) Through a joint committee, members of both houses of the legislature reviewed the qualifications of all applicants. (8) However, the statutes enabling the committee to review the candidates did not define the qualifications to be reviewed or how they were to be weighed. (9) Moreover, the committee lacked authority to remove an applicant's name from consideration. (10) Therefore, unqualified applicants remained eligible for appointment. This process at times resulted in unqualified applicants being elected to the bench because members of the General Assembly--provided with little external guidance on the qualifications of the candidates--often elected sitting or former legislators, with whom they had experience. (11) In fact, from 1995 until 2000, all five South Carolina Supreme Court justices had previously served in the General Assembly. (12) Moreover, all of the current justices, with the exception of Justice Pleicones, were elected very shortly after ending their service in the legislature. (13) Although most of the justices first sat on the Circuit Court, current Chief Justice Jean Hoefer Toal was elected directly to the Supreme Court from the legislature. (14)

While this connection did not go unnoticed, the General Assembly was unwilling to add credibility to the selection process and thereby relinquish its power through public elections. …

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