‘I Feel Like We’re Backing Up, Instead of Moving Forward’

COLUMBIA, S.C. — On Jan. 5, South Carolina became the first state to uphold a constitutional right to abortion since Roe v. Wade was overturned. Justice Kaye Hearn, the only woman on the state’s Supreme Court, wrote the majority opinion in the case, arguing that South Carolina’s constitution includes a right to privacy and “few decisions in life are more private than the decision whether to terminate a pregnancy.” The 3-2 decision struck down a 2021 ban on abortions after cardiac activity is detected — roughly six weeks into pregnancy. The ruling made national headlines for the rebuke it appeared to deliver to a Republican legislature in a deeply conservative state.

Conservatives vowed to fight back, introducing two new bills: one that’s similar to the measure the court struck down, and another that would ban abortion after conception, with exceptions for rape, incest, fatal fetal anomaly and the mother’s life and health. Republican Gov. Henry McMaster decried the court ruling; “results-oriented reasoning threatens to disrupt our constitutional separation of powers,” he said. Then he announced he would file a petition for a rehearing in the case. On Feb. 8, the Supreme Court denied that request.

Meanwhile, Hearn, 72, has reached the court’s mandatory retirement age and is poised to step down as soon as she wraps up her remaining cases. The only candidate who won enough votes in the General Assembly to replace her is male. That means that South Carolina will become the only state in the country without a woman on its highest court.

On one of her last days in her chambers in Columbia, Hearn sat down with POLITICO Magazine to discuss her career and her legacy. She attended law school in the early ’70s, served as a family court and appellate judge, and became the second woman elected to the state Supreme Court in 2009. Petite, like the ballerina she once aspired to be, she wore gold earrings and dainty black heels. Her pink fingernails wrapped around a coffee mug that read, “Never underestimate the power of a woman who graduated from Bethany College.” Hearn fired back at McMaster, saying he is the one who misunderstands the nature of checks and balances. She lamented the fact that the judiciary doesn’t reflect the makeup of the state bar, much less the general population, in terms of sex and race. And she explained why playing the peppery Texas governor Ann Richards in a one-woman show was a surprisingly satisfying role.

The interview has been edited for length and clarity.

Lisa Rab: Your opinion in the Planned Parenthood [abortion] case almost read as a kind of swan song from somebody who has been a trailblazer in this field. You seem to be writing very pointedly about the history of how women have been treated in this state. Is that a fair interpretation of what you were doing?

Kaye Hearn: I have been passionate about equality for women for years and years. It happened to me when I was in college, when I first discovered that women were not being paid equal to their male counterparts for the same work. I had a paradigm shift then and I think it drove me to the law somewhat. I wanted to be in a position to make a difference. And I hope I have.

I love mentoring young women. That portrait on the wall over there is one of my former law clerks who went on to become a judge herself. Sadly, cancer took her at age 39. But I have another woman, a former law clerk, who is a trial judge in the state. And I have a lot of fabulous male former law clerks who have gone on to amazing careers. So that’s not to say I only mentor women, but I’ve tried to be an example for women and to help women lawyers find their voice.

Rab: What were the challenges for you starting out in the legal profession?

Hearn: University of South Carolina Law School, where I attended, was about 20 percent women. So we were a sizable minority then. But I began law school there in the early ’70s. And in South Carolina, women only gained the right to serve on juries in the late ’60s. So that was only a few years before. It was a transformative time. By and large, I felt completely accepted, certainly by the male law students and by most of the male professors. One professor I remember would start out, “Good afternoon, gentlemen,” and then he would look up to see if women were still there. And then he would say, “And ladies.” But he did say, “and ladies.” So I try to be a very positive person, and I’m not easily insulted at all.

I interviewed for a law clerking position here in this very office. And I already had a job working for a law firm that I had clerked for during law school. But I received a letter from Justice J.B. Ness, whose nickname was “Bubba,” asking me to come interview to be his law clerk. I’m not one to forego any opportunities, so I accepted and appeared at his office here. I’d never met a Supreme Court Justice, let alone one named Bubba. So I was excited to meet him.

Didn’t think for a minute that I would get the job, or that I would take it if offered, because I already had a job. But when I walked in, the first thing he said to me after hello was, “I have a lot of problems with you.” And I thought, Oh, my goodness, he’s just met me. He’s the one who invited me here to interview. He must have me confused with someone else. And I said, “Sir?”

And he said, “Well, first of all, you’re a girl.”

I could’ve bowed up. I could’ve said, “Well, that's a chauvinistic thing to say.” But I didn’t. I spontaneously said, “Well, you're just going to have to talk to God about that.”

And he laughed and I laughed. He told me later, at that moment, he knew he was going to hire me. And he became everything to me — my great teacher, my mentor. His family became my family.

He is the reason I’m here as a judge. I’m sure I wouldn’t have thought about that, because there weren’t any women judges in South Carolina or on the Supreme Court when I was in law school. There weren’t any women role models. My role models were men. Justice Ness, and then the senior partner in the law firm I went to work for, James Stevens.

Rab: When was your predecessor on the Supreme Court, [Justice Jean Toal, the first woman on the Court] finally appointed?

Hearn: She was elected a couple years after I went on the bench as a family court judge. I went on the bench in 1986. And at that time, I joined two other women who were family court judges. Jean Toal, I believe, was elected straight to the Supreme Court, which is a different path. But she was a member of the General Assembly, and she was elected in 1988. A lot of people assumed she was a mentor of mine, but I was actually on the bench before she was.

Now, she certainly became a colleague and a close friend of mine. When I joined the Supreme Court in 2010, she was the chief justice. So we’d like to say we were the bookends of the court. She was number one, and I was number five. And I did serve with her as my chief for [five] years till she had to retire because of her age. She’s still very active as a trial judge … But since then, I’ve been the only one. So it’s been a little lonely, but I adore my male colleagues. But I am sad that we will become the only state without a woman on the high court.

Rab: I was going to ask…

Hearn: It’s very concerning, and it should be concerning to the women who live in South Carolina, and especially to the women lawyers. And we make up almost 40 percent of the bar. And I just think it’s very important for lawyers and litigants to look up on the bench and see someone they can identify with, someone who looks like them.

Rab: There were a couple of women candidates [to replace you] and they withdrew. What happened?

Hearn: They withdrew because … frankly, they just did not have the votes. To be clear, all three candidates were eminently qualified. They were three jurists who had served with distinction on our court of appeals, which is our second highest court. This is in no way disparaging of the man who was left standing. I am just sad for our state to not have a woman’s presence on the court and to be the only state. And I believe that is the case. It’s, of course, sad to me as a woman.

Rab: Especially given what’s been happening, with these abortion decisions and all kinds of decisions regarding women and their bodies.

Hearn: I feel like we’re backing up, instead of moving forward.

Rab: What will it mean for the women in the state, and what will it mean for the women attorneys?

Hearn: Well, let me tell you a little story that I think illustrates what it will mean. We have a chief justice who believes that it’s very important, as we all do, but he has taken the lead in having our court travel to other areas of the state to hold oral arguments, to showcase what we do because so many people don’t really understand. And to allow school children and college students, we often hold court at universities. For example, we’re holding court in a few weeks at my local university, Coastal Carolina, and many students will have the benefit of watching our oral arguments and seeing just what the Supreme Court does.

Recently, we went to South Carolina State University, which is the chief justice’s alma mater. But before that, we went to Winthrop University in Rock Hill. The very last case of the week, of the term, I had a conflict, because my son-in-law’s firm was involved, so I could not sit on it. The chief justice invited a member of the Court of Appeals, a male member, to sit.

He’s a fine judge, but there were five men up there, and we do Q&A afterwards with the audience. And a woman raised her hand and was irate. She said, “I took my daughter out of school to come here and watch the Supreme Court. And what kind of an example is this for her? She wants to be a lawyer and a judge one day.”

The chief justice was able to explain, “Oh, we have a woman. She just was disqualified on this case, and this is just a substitute for this one case.”

But what’s the explanation going to be for the next four or five years, or however long the court remains all-male? It makes me sad for women lawyers, for women litigants. It makes me sad for the men, too, because they need to see this example.

Rab: It does seem like, from [Gov. McMaster’s] comments last night, and from what the legislators have been signaling, they're going to try to bring back this issue of abortion rights to the court. Is the ruling something that can stand, or can it just immediately be overturned?

Hearn: It is important to adhere to precedent. So I can’t predict what a future court will do. I couldn’t even prejudge a statute that is yet to be passed. I think if our multiple opinions are read, it’s clear that there is a path to enacting something that would be unanimously upheld. I think it’s also clear, from my opinion, that it was the timing that I found unworkable.

And maybe this is something women know more [about] than men, but we know that you don’t always know you’re even pregnant at six weeks, let alone have time to make that monumental decision. So to be clear, I have one daughter. I could not love her more. She is everything anyone would ever want in a daughter. She’s talented. She’s beautiful. She is a great cook. She’s creative. She’s a lawyer. She’s smart. She’s an adopted child.

So believe me, I am not an abortion-on-demand person. But I do think there should be reasonable restrictions, and I think because we have a specific right to privacy in our constitution, that legally, our decision is correct. But what a future court will do, I couldn't possibly predict.

Rab: To not have a woman on the court when that issue comes again is certainly troubling, to say the least.

Hearn: Well, we need more women in our legislatures too. And maybe that will be one of the outcomes of the times we’re living in now. I’m hoping that more women will decide to be the ones enacting the laws. Or let the public decide, put this to a referendum. We made a reference to that in our opinion. Some states have done that. And I appreciate that the people have a right to speak on this issue.

Rab: I’m sure you know that the decision you made has garnered national attention, because South Carolina became the first state [post-Dobbs] to actually say there is this right to privacy that protects this right [to abortion].

Hearn: Well to be clear, our state constitution specifically mentions a right to privacy. The U.S. Constitution does not. So while Dobbs is certainly a very important decision, it did not control our decision. But I really don't feel like I should comment anymore about the case.

Rab: There are other state constitutions that do have a protected right to privacy, so that may be a legal route that people will be pursuing. But really the larger issue is … You mentioned you feel like we’re going backwards. When you look around, from when you started your career, not just here in South Carolina, but nationally, how do you think women are doing?

Hearn: Well, we’ve made huge strides in turning out more women lawyers. Both of our law schools in this state are more than 50 percent women. When I became a judge, I joined only two other women judges. Now we’re over a third of the state court judiciary. When I was in law school, there were no women on the U.S. Supreme Court. Now, we’ve had quite a few. So I would say we’re definitely making progress.

Maybe I shouldn’t have said we’re backing up, but I guess I feel that way because we’ve had a woman on our state Supreme Court for 35 years. And I guess I hoped and believed that there would always be at least one woman, maybe more. Quite a few courts across the country are actually majority women. We’ve been at the lower end of that with only having one ever since Chief Justice Toal retired.

Do I think we’d look at issues differently? I subscribe to the view that at the end of the day — this was said by, I don’t know if it was Sandra Day O’Connor ... it was said by one of the Supreme Court justices — that at the end of the day, a wise old woman and a wise old man usually come to the same decisions. We can never forget that there were nine white men who decided Brown vs. Board of Education. So please don’t think that I think justice is any different. And the person who is going to succeed me is a wonderful judge. He was not as senior on the court of appeals as the two women who ran, but he’s an excellent judge. But I just think for public confidence in the judiciary, it’s important that the judiciary reflect the face of the bar.

In a perfect world, it would reflect the face of the population, but we know you have to be a lawyer first. So I think it’s fair to put that restriction on it. But we are almost 40 percent of the South Carolina bar. So to be 0 percent of the Supreme Court is very concerning.

Rab: Then there’s another discussion coming up, that maybe the state should change the way judges are elected. [During his State of the State speech, Gov. McMaster said judges should be appointed by the governor and approved by the state Senate, instead of elected by the General Assembly.]

Hearn: I’m a strong proponent of the way we elect our judges. I know it’s a different way, but I’m pretty familiar with what happens when you have public election of judges. And I strongly resist that, or gubernatorial appointment.

We have an amazing cadre of judges in South Carolina. And it’s because in order to be a judge, you don't have to raise a war chest. You don’t have to ask for contributions from big business, from lawyers to help you do TV ads and all that. You don’t have to spend any money at all other than the gas that you put in your car to come to Columbia and get to know the members of the General Assembly. Is it a perfect system? No, it’s not perfect. I don’t think there is a perfect system. But it’s pretty darn good. And we have an amazing cadre, as I said, of hardworking, committed judges as a result. And very, very little corruption or graft, because no money is changing hands.

I remember speaking to one of my judge friends from Texas, and he told me he had to raise $2 million to get a job that paid, at that time, about $100,000. And I’m like, “Well, these people that give you money, who are they?” And he said, “Well, businesses, lawyers.” And it’s clear they expect something when they come in front of the court. We don’t have that.

Rab: Do you think having an independent judiciary and issuing opinions, as you just did, can be sort of a corrective? There’s some question as to whether the [six-week abortion ban] the legislature passed really reflects the will of the people.

Hearn: Of course, the legislature in the state and elsewhere has plenary powers, and they are the representatives of the people. I completely accept that. But our whole system was founded on a system of checks and balances. This is exactly the way the system is supposed to work. I know I can speak for all my colleagues on the court, we respect the decisions of the General Assembly. But that’s a different question as to whether or not that legislation is constitutional. And I would hope when we would make a decision — they can disagree with it, of course they can — but I would hope they would respect it. And I think that’s the disappointment that I’m seeing with our governor last night. He’s a litigant in a case in front of us that’s still pending.

Rab: What have you heard from the public? Have you heard from female attorneys about your retirement?

Hearn: Absolutely. Gotten all kinds of letters and phone calls. And I was at the South Carolina Bar Convention last week, and a lot of women and men were very ... I feel the love. I feel the love.

Rab: Last year, you wrote quite a dissent in a death penalty case, arguing that the system is broken because the court has never found the punishment to be disproportionate to the crime — even in this case, when the man was unarmed.

Hearn: I do believe in the death penalty. But I believe it should be reserved for the worst of the worst. And I have voted to uphold a death penalty sentence on multiple occasions. And it was only in that case that I felt it was not proportionate to the crime. And I did take that opportunity. I do not believe the general public is aware that we have men on death row dating back to the 80s. We have over 30. So I think my opinion made it clear that if we’re going to have a death penalty, let’s have one that works. This is not working.

Because to me, that’s not fair to the victims’ families. It’s not fair to the jurors. That is the most difficult decision a juror could ever make. And they voted to sentence someone to death, and yet decades later, it hasn’t happened. It’s not even fair to the families of the defendants. So I did take that opportunity. I wanted to educate the public on what was going on, because I worry so much that the general public is so unaware of what’s happening in state government, in the courts, in the prisons.

Rab: Do you identify with a political party?

Hearn: I do not. I have taken my oaths very seriously ever since I went on the bench. For years, I didn’t even vote in primaries because I felt that it would signal what I was. Now, really the only primary in South Carolina, just because of the way the political makeup is right now, the Republican primary is very important. And I have voted in the Republican primary many times. My husband served as a legislator, as a Republican legislator. But I’ve tried to be apolitical.

We’re not supposed to attend political events. Whenever my husband was running, I couldn’t even go to most of his political events. Our daughter went with him.

Rab: I remember reading something about Ruth Bader Ginsburg getting a call from her son’s school while she was working on a case and saying, “You know, the child has two parents.”

Hearn: I’ve read that. You must have read the Nina Totenberg book, [Dinners with Ruth]. I'm reading that now. My daughter gave me that for Christmas. It’s a great book, isn’t it? When I speak to young women [about balancing work and family], I usually end by saying: Look, there’s no magic bullet I can give you. It’s a balancing act all the time. But it is for him, too. But there are two things. First of all, marry the right person, because that one decision determines 90 percent of your happiness or misery in life. And I know that because I’m so happily married, and I know that from my nearly 10 years on the family court bench.

But the other part of it is, never do anything that wouldn’t make your mama proud. And I’ve always tried to do that. I’ve been lucky I married the right man. And I think my mom has always been proud of me.

Rab: I am curious about your theater career as well. Because I read that you’ve played all kinds of roles, that you played [Texas Democrat and former governor] Ann Richards.

Hearn: I grew up loving to sing and dance and be in plays. And my husband is the same way. My husband and I did something called Love Letters right before Covid, which was really a sweet story about two people who had really loved each other their whole lives, but it just never worked out for them to be together.

Then the director asked me to play Ann Richards, and I thought he had lost his mind. I am not tall, I am not blond, I am not Texan. I didn’t know very much about Ann Richards. So I talked to my husband and daughter, and I said, “I don’t want to do this. I don’t see myself doing this.” And my daughter said, “Mama, when the director asks you to take a part, if you don’t take it, you’ll never get any other parts.” I said, “Honey, I’m 70 years old. I’m not looking for other parts.”

I did agree to do it. And I actually loved doing it. I loved having big blond hair and a Texas accent. It’s hard being in a one-woman show, though. You don’t get the same energy. I’m a people person. I get my energy from other people. Nothing makes me happier than having a bunch of people around my dining room table that I’ve cooked for. That’s when I’m at my happiest. So now the director wants me to do a one-woman show on Dr. Ruth [Westheimer], but I haven’t committed to that yet.

Rab: Will you be doing more of that in retirement? I don’t know if your retirement is actually retirement. Are you going back to being a lawyer?

Hearn: I think I will go with a law firm and probably write some briefs and do some appellate work and maybe some other things. And I certainly hope to have time to perhaps teach, or to be in plays. And I’m very active in my church choir, but I could be active in other aspects of the church.

Politico: So you’re not really going to be slowing down much.

Hearn: No, not yet. I still have a lot of energy.