God’s Word has much to say about justice. God told Amos, “Let justice roll down like waters, and righteousness like an ever-flowing stream” (Amos 5:24). Solomon extols the virtue of wisdom, writing that “wisdom walks in the way of righteousness and in the paths of justice” (Proverbs 8:20). David wrote, “For the Word of the Lord is upright, and all His work is done in faithfulness. He loves righteousness and justice; the earth is full of the steadfast love of the Lord” (Psalm 33:4–5).
Rightly determining what is right and just should not be such a challenge. But in a world where the foundation of justice (truth and righteousness) has been undermined, it becomes a bit more complicated. Every law in South Carolina is subject to judicial review. When our justice system works the way our Founding Fathers designed it to work, we have just laws that lead to a government of, for, and by the people. When our judicial system becomes corrupt, whether by design or neglect, we create a culture that bends to the political whims of the powerful. “Liberty and justice for all” are words that are enshrined in our pledge to the flag, but they don’t mean much on Main Street if they are unequally applied.
The Heartbeat Bill, passed into law before the overturning of Roe v. Wade, was enjoined by the federal courts because it was judged to be a violation of federal law. When Roe went the way of the dodo, South Carolina’s Supreme Court became the final word on whether or not life would be protected in the womb at the detection of a heartbeat. In a 3-to-2 ruling, the Court said the Heartbeat Bill violated the South Carolina Constitution’s right to privacy. About right now, you are probably saying to yourself, “Wait a minute, didn’t the federal Supreme Court rule there was no right to privacy in the Constitution?” The answer would be yes, but their focus was the United States Constitution.
The language that three of our S.C. Supreme Court Justices hung their hats on can be found in Section 1, Article 10, which says, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.”
In other words, if the government wants to come into your private space and take your stuff, a judge has to sign off on the search. It has nothing to do with abortion or the sanctity of life. It was added to the state Constitution in 1971 when J. Edgar Hoover was in the process of turning the FBI into his own personal detective agency. South Carolina wanted no part of it. Lawmakers wanted clear protections against illegal search and seizure for our citizens.
To understand how we could end up with three judges who believe search and seizure law applies to abortion, you have to understand how South Carolina selects its judges. The same South Carolina Constitution says we must have something called the Judicial Merit Selection Commission. But the makeup and manner of the commission is statutory and could be subject to change by the Legislature.
Right now, the commission consists of 10 members, (three senators, three House members, and four members at large). The members of the commission are vetted, and placed on the commission, by the Legislature. Once the commission decides which three judges to recommend, the Legislature votes to elect one of the judges. There is no open process for questions and answers for the judges. All of the vetting takes place behind closed doors. The Executive Branch (the Governor’s office) has no say in who will serve as a judge.
Many of our legislators are lawyers. There is nothing inherently wrong with that, but our system has become lawyers vetting lawyers to be judges, with both the lawyers and the judges knowing they will be coming together to make decisions about our laws. It is an unhealthy relationship that is ready-made for undue influence being brought to bear. Even if everyone is on the up-and-up (and I am not suggesting here the lawmakers or the judges are corrupt), there is little transparency and plenty of room for unintentional — or, in some cases, intentional — outcomes that shape the court more by politics than by principle.
What would judicial reform look like? There are plenty of meritorious proposals being tossed around. The main elements should be transparency in the vetting of the judges and accountability by allowing the members of the Judicial Merit Selection Commission to be appointed by the Governor, not the Legislature. Open questions and answers during the legislative vetting process would reveal the judicial philosophy of the candidates, thereby increasing the accountability of the legislators’ decisions to the people.
We should be concerned about judicial reform — because no matter how many good laws we pass, we cannot reach our goal of being a state where those laws bend our society toward justice unless they are upheld or rejected by a court that focuses on the text and is transparent and accountable.