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Just Change The Rules

Many of us have heard by now that President Joe Biden formed a “bipartisan commission” to study potential U.S. Supreme Court changes including expanding the number of justices beyond the current nine, a goal of some liberal Democrats hoping to end its conservative majority.  Under the executive order the 36-member commission will consider the “merits and legality” of potential reforms to the nation’s top judicial body including adding justices or imposing term limits on their service instead of the current lifetime appointments.  The number of Supreme Court justices has remained at nine since 1869, but Congress has the power to change the number and did so several times before that.  Congress routinely changed the number of justices to achieve its own partisan political goals, resulting in as few as five Supreme Court justices required by law under John Adams to as many as 10 under Abraham Lincoln.  Meanwhile, imposing term limits would likely require a constitutional amendment, though some scholars have proposed ways to accomplish it by statute.

What many do not realize is that the leader of the South Carolina House wants to add two more justices to the South Carolina Supreme Court.  Republican House Speaker Jay Lucas told The State newspaper that most states have either seven or nine justices.  South Carolina’s highest court has had five justices for at least 50 years.  Lucas says his proposal would bring a greater diversity of ideas and perspective to the court.  Lucas is a sponsor of the resolution which if passed by the House and Senate would put a proposed constitutional amendment before voters in November 2022 to expand the state Supreme Court.

In a statement, Lucas told The State that, “There are many areas of the state that have never seen or do not currently see representation on the court, including places like Beaufort, Charleston, York and Lexington counties, and the addition of two more justices will ensure a more diverse court in terms of regional representation.

“As the population of South Carolina continues to grow in unprecedented ways, the addition of two justices to our state Supreme Court is an appropriate response,” Lucas said.

Currently three of the five Supreme Court justices are from the Upstate — Chief Justice Don Beatty of Spartanburg, and associate justices John Kittredge and John Cannon Few, both from neighboring Greenville County. Associate Justice Kaye Hearn is from Conway, near Myrtle Beach, and George “Buck” James is from Sumter. No justices are from Columbia or Charleston — two of the state’s major population centers.  The Supreme Court is the same size it was 50 years ago, when the population of South Carolina was 2.5 million. The population is currently approximately 5 million.

Let us delve in a little shall we:

In SC, we have a Republican Majority in the legislature, but many would argue a Democratic Majority in the Supreme Court (even though they are officially nonpartisan).

On the federal level we have a Democratic Majority in the legislature, but many would argue a Republican Majority in the Supreme Court (even though they are officially nonpartisan).

The SC population has grown in the last fifty years; the US population has grown in the last 150 years.

SC has 5 justices, while other states have 7-9 justices; the US has 9 justices, while other countries have upwards of 27 justices on their Court.

In South Carolina areas of the state are not represented on the Court; on the US Supreme Court areas of the country are not represented.

None of this is meant to suggest that a Congress or Legislature should – or should not – change the number of justices. Political considerations are not the point of this blog, It is recognized and understood from precedent that the number of Justices can be changed. The legislative branches can decide to add seats to the court, however adding justices to the Supreme Court cannot become a regular occurrence to fit political whimes. Repeated expansion of the Supreme Court for political reasons will erode public confidence in the judiciary.  The Supreme Court is designed to be nonpartisan, and using the Judiciary to fit partisan objectives erodes it’s mission within our Checks and Balances System, even if  our plan of government allows the elected branches to do it.

This is better stated by Justice Beyer in a speech at Harvard Law School.  Breyer indicated that changes to the court could undermine its authority. The court, Breyer said, depends on “trust that the court is guided by legal principle, not politics.”  This applies to the US Supreme Court, the South Carolina Supreme Court, and the entire legal system – Judges and Attorneys included.

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