Retired South Carolina Supreme Court Justice Kay Hearn | This Week in South Carolina

Retired South Carolina Supreme Court Justice Kay Hearn.


Gavin Jackson: Welcome to This Week in South Carolina. I'm Gavin Jackson. Justice Kaye Hearn was elected to the Supreme Court in 2009, becoming only the second woman in history to serve on the High Court. With her retirement this year, South Carolina is now left with an all male court. We sit down with Justice Hearn to discuss her legacy And hopes for the future. Former Justice Kaye Hearn, thank you for joining us.

Ret. Justice Hearn: Thanks for having me.

Gavin Jackson: So before we talk about more recent rulings and developments on the court, I want to take a look at your career and see how you became a judge, how you became the second woman on the state Supreme Court. So take me back to the law school days. Take me back to what drew you to going into the legal profession in the first place? 

Ret. Justice Hearn: Well, It's really a miracle [ laughs ] because I grew up in northwestern Pennsylvania in a little town called Warren with dreams of being a ballerina, and, so, I was at a crossroads; Should I go to college? Should I try to go to New York and pursue a dancing career? I chose college and a couple things happen there that kind of changed the direction of my life and one was, I was asked to attend a conference on women in Washington, D.C. and when I got there, a button was pinned on me that said, "Five nine." I didn't know what it was, was it, was I the 59th person to register? Or was I supposed to sit at table 59? Or God forbid, was this really a math conference and I'd been deceived? [ laughs ] But no, I looked around and everybody had a button with five nine on it and it was to drive home the point that at that time, women earned 59 cents for every dollar that a man earned. You know, I had led a somewhat sheltered life. I had no idea that life wasn't fair at that point.  And I had a paradigm shift, although I didn't know what it was called then and I never looked at the world quite the same way. So I sort of changed my course and decided I wanted to do something that I thought would make a difference. I loved history and was majoring in that, so, and you know, growing up, I loved "To Kill a Mockingbird." Who didn't? So I decided I'd go to law school, which wasn't a real typical career choice back then, for women, but my parents were all for it. So I went to law school, came down here, saw the University of South Carolina, saw Columbia, just fell in love with this town and the university; still am. it's been a long love affair [ laughs ] and you know, at that point, there were no women judges.

Gavin Jackson: Yeah, I was going to say what was it like at U.S.C. Law back in the 70s? I mean, going through the school, navigating that at the time? 

Ret. Justice Hearn: Well, it was exciting, because even though there were only about 20 percent women, there were 20 percent and so we were a bit of a force to be reckoned with and you could just feel the world changing around you. When I came to law school here, women had just earned the right to serve on juries a couple years before in South Carolina. So,it was sort of a time of change when law firms were considering, well, maybe we do need to hire a woman.  Because now we've got to talk to women jurors, not just men jurors, and I did want to do trial work. I grew up on stage and singing, dancing, acting, and I, public speaking. So I didn't want to be a backroom lawyer.  During my senior year in law school, well, two things happen. First of all, I guess I should tell you that they were debating the E.R.A. in the General Assembly. So someone, it wasn't my idea, somebody had the idea that some of us should go watch the debates. So a bunch of us mostly men, law students, and me went over and sat in the gallery of the State House and who was arguing in favor of the amendment? Jean Hoefer Toal. First time I ever laid eyes on her. Now, ultimately, the amendment went down to crashing defeat here in South Carolina and nationally, but I came away from that evening just so impressed with this plucky woman legislator from Columbia and had I ever imagined that the two of us would be elected on the same day, like 25 years later to lead the two highest courts. Well, It's something I never could have thought of, because there weren't any women judges. So there were no role models in that sense.

Gavin Jackson: But you did get a start there from college and after graduation? I mean, you kind of had your pick of some things but then a pivotal decision, got you kind of on a jurist track in a way. 

Ret. Justice Hearn: Well, and that decision happened during my final year in law school. I had accepted a job with a firm here in Columbia that I had been clerking with and was very happy with that decision, but then I received a letter from a justice on the Supreme Court, Julius B. Ness from Bamberg, whose nickname was Bubba,  and that year, instead of taking applications for law clerks, he asked the Dean of the Law School, a great man named Harry Lightsey, to recommend five students to him. I don't know why, but I was one of the five. Fortunately for me, and so I walked into the interview, even though I already had a job. I'd never met a Supreme Court justice. My parents didn't go to college. I was going to be the first lawyer in the family. So I wanted to meet a Supreme Court justice, especially one named Bubba.

Gavin Jackson: I'm glad I get to meet one but continue. [ laughs ]

Ret. Justice Hearn: So I went to the interview, I walked into the Supreme Court in ironically the same office that was to become mine years later, and he stood up and shook hands and smiled and I thought, Oh, this is good. He seems like a regular guy, but the first words out of his mouth where, "I have a lot of problems with you." I'm thinking, My goodness, he just met me. He's the one who invited me to come interview. And I said, "Sir," and he said, "Well, first of all, you're a girl," and you know, I don't know. I just automatically said, "Well, you just gotta have to talk to God about that." He laughed. I laughed, and I got the job. So that changed everything in my life and I became so close to him. I moved to Bamberg. He said, "Well, you're gonna have to move to Bamberg." Well, I'd never been to Bamberg, but I said, "Sure," because I wanted the job and he became my teacher, my mentor, my friend. So close. I'm still very close to his whole family.

Gavin Jackson: And then tell us how you kind of got to that point, then got that to that office eventually. How did you work your way up from being a clerk to then becoming a Supreme Court justice? 

Ret. Justice Hearn: Well, when I left Justice Ness, I just took the best job offer I had, which happened to be in Horry County and it was a firm of trial lawyers and the senior partner was a former senator of some 20 years, James P. Stevens. He was also a wonderful mentor to me and I, you know, as I look back, I realized that you don't have to have mentors that look just like you.  I had two much older men who were my mentors, but they were great and he was encouraging that I should consider,  at some point running for a judgeship and of course, so was Judge Ness. Gradually, women started entering the judiciary and after practicing law for about six years, there was a vacancy in the 15th circuit Horry County for Family Court Judge.  So I was encouraged to run for it. I did, and I won. And back then in 1986, I became the third woman judge out of around 100 state court judges.

Gavin Jackson: So it was kind of unexpected when people would see you on the bench, right?

Ret. Justice Hearn: Oh, yeah, and I'd look really young. Those were the days, right?  I didn't look what, I didn't look like judges looked and I was often confused as a law clerk, especially, not in my home circuit, but when I traveled to other circuits. 

Gavin Jackson: And that propelled you to the Court of Appeals.

Ret. Justice Hearn: Yes, I was on the Family Court bench for almost 10 years, and I've really loved it, but, you know, when you start out at age 36, you know, you're kind of thinking, well, do I really want to keep doing this for the rest of my working years? So I had the opportunity, I missed the appellate work I had done with Justice Ness, so I had the opportunity to run for the Court of Appeals and you know, it was just a different time. I mean, I think people were excited about women entering the profession and I was elected immediately after, in the very next election, after the General Assembly had elected Carol Connor, the first woman appellate judge in the state.  Well, there was Jean Toal, too, of course, but the first woman on the Court of Appeals was Carol Connor and then the next go round, the next time there was a vacancy, I ran and I was elected and at that time, the Court of Appeals had six members. It was such a wonderful court and I was there for 15 years,  and served as chief judge for the last 10 and that was the election I was talking about with Jean Toal. On the same day in June 1999, the two of us were elected to lead the two highest courts. It was such a great day for women in South Carolina.

Gavin Jackson: And when you have that, I mean what are your thoughts in terms of what that meant? What that signaled to? Maybe the state, maybe to women in the legal field. 

Ret. Justice Hearn: I thought it signaled a new era and it did at the time. I mean, unfortunately now I think we're backtracking a little bit. We're going backwards, but I'm, I'm an optimist at heart and I believe that's going to change. 

Gavin Jackson: Yeah. Because then you became the last woman on the Supreme Court after Jean Toal left in 2015.

Ret. Justice Hearn: Yes. There were two of us and then she had to retire.  And then it was just the boys and me. One of my former law clerks, jokingly  refers to me as their Wendy and they were the Lost Boys. It's not true at all. They're not lost but I was helpful in some ways to them and I'm kind of lost without them now. 

Gavin Jackson: How did that change deliberations? I mean, if you can peel back the curtain a little bit And tell us you know, how those kind of come about and what it was like, when you had someone like Jean Toal, Chief Justice Toal in the court event, just you and maybe how things progressed to this point. 

Ret. Justice Hearn: You know, it is different being the only woman. It is.  When I entered, when I became a justice on the court, Jean Toal was the Chief Justice and we became very close. A lot of people assume she was a mentor of mine. Not really. I was actually a judge before she was, but she became a mentor, as my chief justice, of course, as my leader and we used to joke that we were the book ends of the court, you know, we'd keep those men together, you know.  And it was a different dynamic when she left, and I had to be a little more mindful of, women's perspectives on things. I didn't really have to think that much about it before because there were two of us, but then it was on my shoulders and I always found my colleagues, when I would say, now wait a minute, we're reappointing 40 lawyers to a board here and only four of them are women. I, in good conscience, I can't do that. We are almost 40 percent of the bar, and they would realize quickly. There was never any pushback, but sometimes it takes, and I think that's what, that's why diversity on a court is important. It takes having someone in that position to think about things like that.

Gavin Jackson: Yeah, especially when you're talking about the diversity of the bar, and you look at the diversity of our state, which is 51 percent female, too. So I mean, you should really, you know, more, you know, more than half that court should be female in a sense. I mean, does it have to be?

Ret. Justice Hearn: Well, you know, I think It's some point perhaps, could be, but It's not just every woman that can become a judge. You have to go to law school first and It's only been in about the last 10 years that law schools have been 50 50, or pretty close to it. Charleston, I believe, is 60 40 women at this point. So over time, you know, that's changed. When I went it was 20 percent, so percentages have gone up. I think we're getting close to being 40 percent of the bar and that's way past critical mass. So we are a force and I do worry when those women lawyers argue their cases before the court that they now look up and they see five men. It can be, it's never been intimidating to me. I've always loved men and I was one of those tomboys growing up. I didn't play with dolls. I was out hitting the baseball or something, but it can be intimidating.

Gavin Jackson: Well I think going before the Supreme Court by itself is intimidating, but I'm not a lawyer, but yeah, me you guys are always jumping on these lawyers. They can't even finished a complete thought. 

Ret. Justice Hearn: So, you're so right on that. There's a saying that says appellate judges are a lot like dogs.  Individually, they can be agreeable, even nice, but beware when they travel in packs and we are a pack up there. There are five of us. 

Gavin Jackson: I think I'd lose my cool. [ laughs ]

Ret. Justice Hearn: It is intimidating and you know, sometimes It's nice to look up on that bench and see someone that looks like you. 

Gavin Jackson: And now your thoughts, I mean, after 35 years, we were the only court in the country now without a female justice on the Supreme Court. You said that might change soon. We'll see some retirements coming up but your replacement was a man even though the two of them were running for that seat. What were your thoughts on that race?

Ret. Justice Hearn: Well, you know, Gary Hill is a wonderful judge. He writes. As a judge on the Court of Appeals, he authored some of the most academic opinions I've ever read. He is a great candidate, and he is very deserving of being on the Supreme Court.  Having said that, the two women who were running were equally deserving and perhaps more so in that they had been on the bench longer. Judge Konduros particularly, had really paid her dues and Judge McDonald had. So it was disappointing. Not that, I'm happy for Gary Hill, and he will be an excellent jurists, but, I wish the General Assembly had thought about how important it is to have diversity on the court, because all three of them were very, very qualified.

Gavin Jackson: Do you think, and that was your understanding pretty much reactionary to that decision dealing with abortion earlier in January?

Ret. Justice Hearn: Well, you know, I think it was a perfect storm. I think there were a lot of things going on. In the last legislative election, many, many more Republicans were elected, And some of them were extremely conservative on many issues and that changed the face of the General Assembly a good little bit. I'm sure that our Planned Parenthood decision didn't help, but, you know, yes, I authored the lead opinion, but there were two male justices who agreed with me. So I really  regret that that opinion would have had any impact on the selection, but I do think it played into it, sadly.

Gavin Jackson: And you stand by it?

Ret. Justice Hearn: Absolutely. Absolutely. I mean, if you are going to,  if you're going to pass a law, a statute, dealing with abortion,  you need to give women enough time to know that they're pregnant and six weeks is a joke as every woman, every woman knows. Maybe some men don't know that, but every woman knows that.

Gavin Jackson: And that was the law that was passed in 2021. Then that was in the federal courts, until the decision with Roe got overturned. Then another lawsuit kicked it to the state Supreme Court. I want to talk to you about abortion further and when the day that Roe was repealed. Did you think in the first place that that was a good decision by the U.S. Supreme Court when it came to Roe and what were your thoughts when it did get repealed?

Ret. Justice Hearn: Well, you know, I grew up with Roe. I don't know if I had been authoring Roe that I would have based it on a right to privacy since there is no right to privacy in the U.S. Constitution, but I do believe very strongly in a woman having the right to make medical decisions about her own body. We in South Carolina have a provision in our constitution that specifically gives our citizens a right to privacy. That provision has been interpreted by our Supreme Court to apply to a death row inmate who did not want to be medicated before he was executed and as I said, in my opinion, It's just inconceivable to me that a convicted murderer would have a greater right to privacy over medical decisions of his body than a woman. So because we had that right to privacy, we were able to reach a different decision than the Dobbs Court did. I'm, I thought Chief Justice Roberts' opinion was very reasonable. I certainly believe in reasonable restrictions on abortion. I don't really want to discuss that decision too much, because I think my decision speaks for itself and I don't really want to editorialize on it.

Gavin Jackson: But y'all did write separate opinions, too, which is kind of rare. Is that just really a way to show that you guys aren't legislating from the bench, which I'm sure has always been a worry from folks across the street from the Statehouse in the Supreme Court, I should say? 

Ret. Justice Hearn: You know, I think it was it was also a very important issue that we all felt strongly about. I felt strongly that the right to privacy resolved that statute. Now, if the statute had been 12 weeks, 15 weeks, I may well have felt differently. Chief Justice Beatty felt strongly that there were other constitutional implications like equal protection. I don't necessarily disagree with his opinion, but I didn't think we needed to go there. I thought the right to privacy was strong enough. 

Gavin Jackson: So obviously, there was a lot of blowback from that opinion to across the street from the statehouse And the Supreme Court, like I said,  the House and the Senate, the governor's office, they were all kind of spun up about that. That was probably expected. Was there any kind of

Ret. Justice Hearn: It wasn't expected that the governor would mention it in the state of the state. No, that was not expected. 

Gavin Jackson: So I guess let's talk about unexpected follow up from that decision. I mean, what kind of blowback did you see? Did you see support? What was the reaction that you were getting?

Ret. Justice Hearn: I saw so much support, it was amazing.  I got letters from strangers all over the state, many from OB GYNs thanking me. I walked into a restaurant in my hometown and people stood up and clapped. I don't think the General Assembly has a clue how the majority of people in the state  really feel on abortion and I hope they'll figure it out.

Gavin Jackson: And we've seen polling that shows that there's support for abortions with exceptions up to a certain time and we've talked to people about that, too and gerrymandering plays a little bit of a role on how that plays out.

Ret. Justice Hearn: Sadly, it does and then, you know, the other thing that was so interesting, I received quite a few messages from wives of legislators,  legislators who, unfortunately, and very sadly, felt they had to vote a certain way on that act. I don't think in their heart, they believed it. Their wives certainly didn't, because they applauded my decision. So, I did not, you know, I was shocked when the governor as a litigant in a case, it was still pending before us, and certainly as a lawyer and a former U.S. attorney, he knew better. I was shocked when he blasted the court. I've been going to those state of the state addresses since 1995 and it's always been so cordial. You know, we have so much respect for the General Assembly on the court and so much respect for the governor and it was very disheartening to see that that was not reciprocated. 

Gavin Jackson: And a lot of applause there, too, I'm sure from the members in the House and the Senate when they were there for that General Assembly meeting. Well, because there's also talked about reforms, and there's not much support when it comes to, you know, folks ceding their power when it comes to the House and the Senate choosing these justices, choosing these judges, and giving some of that power to the governor. Do you have any thoughts on judicial reforms? Do we need to change how we pick judges?

Ret. Justice Hearn: Absolutely not. When I was Chief Judge of the Court of Appeals, I rose through the ranks in the National Organization of chief judges. It's called the National Conference of Chief Judges and I ended up being president of that group and I was very close friends with chief judges from all over the country and I spoke with many of them about their systems of election. Of course, public election is the absolute worst. I remember a conversation I had with one of my friends in Texas who had to raise several million dollars to obtain a position that at that time paid about 100,000. And I said to him, Well, who gives you this money? And he said, Well, big corporations, law firms. I'm like, well, isn't that a nightmare? Because you have to recuse yourself, then when those lawyers or those corporations come in front of you and he'd looked at me like I was nuts. He said, Of course I don't.  That's why they're giving me money. I think that would be a terrible, terrible system. Terrible for judicial independence.  Gubernatorial appointment is fraught with so many political considerations that I don't favor that. I'm not saying that we have the best system in the world, but I think it's the best of the ones I know. We do have several merit based steps. We have a Citizens Committee that screens you. We have a bar committee, that's pretty powerful and they send out surveys and the General Assembly, they listen to those results. And then we have the ultimate.  We give testimony, the candidates in front of the judicial merit selection commission. There was a period of time for quite a few years where there were no women on that commission and I made a lot of noise about that and I encouraged women lawyers to make a lot of noise about that. Fortunately, that's changed. There still are not enough women on that. Should be 50 50, in my view, but It's not. So I, do I think there could be some improvements? Yes, but we have an amazing group of judges in the state. We really do. They're hardworking, they're personable.  They they handle more cases than most judges in other states and I'm very proud to have worked shoulder to shoulder with them and I think our system of election is a good one.

Gavin Jackson: Justice Hearn, with less than a minute left, where do you go from here at this point in your career now? And maybe some advice for folks who might want to jump into the legal field.

Ret. Justice Hearn: Hmm, gosh! Well, I ultimately plan, when I'm finished, I'm still serving as an acting justice because there's some opinions circulating that I sat on. I am sitting with the court for May term for a couple days. I'm going to do that for a few more months but and that's very typical. Most justices who retire do that and then I intend to go into private practice and do appellate work because that's really the only thing I think I'm capable of doing. I'll probably be more involved with my church, more involved with our community theater group, which is also a love of mine. My advice to anyone thinking about law is go for it. It is a one wonderful profession. So many doors are open to you. You don't have to be a trial lawyer. You could be a transactional lawyer. You can use your law degree in business. It is a great profession for everyone and I'm very proud to have been part of it. 

Gavin Jackson: Former State Supreme Court Justice Kaye Hearn, thank you so much for talking with us And sharing your insight.

Ret. Justice Hearn: Oh, absolutely my pleasure. Thank you. 

Gavin Jackson: To stay up to date with the latest news throughout the week Check out the South Carolina Lede. It's a podcast I hosts on Tuesdays And Saturdays that you can find on or wherever you find podcasts. For South Carolina E.T.V. I'm Gavin Jackson. Be well, South Carolina.