Wednesday, November 6, 2013

The Quest for Unanimity Holds Up Decision in South Carolina's School Finance Litigation

ScA couple of weeks ago, I posted on the South Carolina Supreme Court's failure to issue a final decision in the school finance case that has been on its docket since 2008.  The case has been before the court so long that it reheard the case in September 2012.  Based on the oral argument, three of the five justices appeared willing to rule in favor of the plaintiffs, but two others were far less certain, if not adverse.  Since early this spring, I have speculated that the hold-up in a final decision was related to the Court's attempt to reach consensus.  In South Carolina, consensus might be especially important.

South Carolina's Supreme Court justices are elected by the legislature.  A large percentage of justices are also former legislators.  And South Carolina's legislature pays less respect to its governor and its courts than most other states.  In that climate and given the enormity of school finance, a supreme court justice might question how seriously its legislature would take at 3-2 decision.  A legislator might say: why not stall and wait till the odds change or we appoint a new justice who sees it our way?

My suspicion that a desire for a fourth or fifth vote was holding up the opinion was confirmed this week in a public hearing before the state's judicial merit selection commission.  Before the commission, the Court's chief justice, Jean Toal, acknowledged that Court was "struggling" to decide the case.  Even more poignantly, she stated that cases like the school funding case “take an awfully long time to try to speak with anything like one voice.”  Also tied up in the delay may be the fact that an Associate Justice, Costa Pleicones, is running to take Toals' place as chief.  His primary complaint: the lag time on deciding cases.  The problem is that I had initially pegged Pleicones as the Justice who might be willing to go with the majority but was openly concerned about the wisdom of intervening in school finance.  In other words, while he raises a valid general point about lagging decisions, but he may very well be the 4th vote that Toal is waiting on in the school finance case.  Regardless, the question is whether unanimity or near unanimity is worth the cost?

The U.S. Supreme Court certainly saw it as being of the utmost importance in Brown v. Board of Education, as well as other decisions that followed.  It believed the public would never accept integration if the Court itself was divided on the issue.  School finance is not desegregation, but it does strike at the core function of local government and its biggest budget item.  Thus, the stakes and the contentious surrounding it cannot be discounted.  From this perspective, reaching for unanimity makes sense.  On the other hand, if unanimity never comes, then each day wasted on unanimity was a day the Court abdicated its responsibility.  A 3-2 decision serves students far better than no decision at all.  Students do have rights and the law is what the majority—even if it is just a 3-2 majority--says it is, not what a hold out judge wants the law to be.

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I think your reading is plausible, Derek, especially given the parallel with Brown. But I have always suspected that, in this case, the court's preference is to stay its hand, and that it has been dragging its feet in the hopes that the legislature will improve things on its own (even a little bit), thus giving the court an "out" similar to the one the Texas Supreme Court used in Neely (that the fact that test scores and funding were imrpoving showed that the legislature was not acting arbitrarily). I've been wrong before, though.

Posted by: Scott Bauries | Nov 6, 2013 7:59:26 AM

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