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Chris Christie’s showdown with judicial activism in revolutionary New Jersey.
Anyone fortunate enough to experience the annual re-enactment exercises that mark George Washington’s audacious Christmas Day crossing of the Delaware River in 1776 will find there is no getting around the special role New Jersey played in reigniting the American Revolution.
As one of the original 13 colonies, N.J. responded forcefully to the phrase “no taxation without representation” and helped set the stage for a new constitutional order that keep political power divided, checked and limited. The “Ten Crucial Days” that resulted in major victories for the Continental Army over the Hessians in Trenton and the British in Princeton re-energized the American cause.
But over the past few decades, history has turned away from ideals underpinning the Revolution and in the direction of an unelected, elite class of policymakers. Despite the reverence and appreciation local residents have maintained for the “Spirit of 1776,” they now inhabit a world that was reshaped at the behest of a renegade government agency.
Visitors to the “Old Barracks” in Trenton, where some of Hessian soldiers were quartered at the time of the Revolution, can’t help but notice the sad irony attached to the museum’s awkward juxtaposition with the state Division of Taxation building.
Beginning in 1973, the N.J. Supreme Court saw fit to interject itself into education policy and to force tax hikes onto local residents in an effort to bring funding for poorer school districts into greater parity with wealthier districts. It was at this point that the concept of self-government as it was expressed in the Declaration of Independence became inoperative in New Jersey.
Writing on behalf of the court in Robinson v. Cahill, Chief Justice Joseph Weintraub suddenly discovered that the local funding system used to support public schools violated the “thorough and efficient” clause included in the state constitution because it shortchanged urban districts.
For almost 100 years prior to Robinson, no previous court viewed the funding mechanism underpinning K-12 education as a subject matter open to adjudication. This ruling set the stage for Abbott v. Burke, which resulted in a 1985 ruling that ordered state spending on poor districts to be put on an equal footing with wealthier school districts.
In subsequent Abbott rulings, the court has ordered state officials to maintain equal levels of funding and to support supplement programs aimed at boosting the quality of education in urban settings.
Under Chief Justice Robert Wilentz (1979-1996), the court further intruded into the public policy in a series of rulings known collectively as Mount Laurel, which directed local communities to provide affordable housing.
Where does the N.J. Supreme Court derive the authority to reshape public policy in such a profound manner without popular consent and without legislative approval? Gregory Sullivan, a practicing attorney who writes a column for the Trenton Times, sees an “imperial judiciary” at work that has violated the separation of powers.
“How much money is spent and where has nothing to do with the constitution,” Sullivan said. “It has everything to do with determinations by legislators and governors who are electorally responsible for their decisions. By contrast, it is essentially impossible to hold any court accountable for the squandered millions that have been judicially ordered for decades.”
Since the mid-20th century, the progressive impulses that have held sway in New Jersey have given cover to judicial activism. But in response to the state’s deteriorating financial position, the political climate has shifted in a manner that favors reform. A critical turning point came last April when Gov. Christie turned the school budget elections into a referendum in favor of fiscal conservatism and against judicial overreach.
For years, the New Jersey Education Association (NJEA), the state’s powerful teachers union, had rationalized continued property tax hikes on the basis of dubious constitutional reasoning. This time around, the NJEA pitch fell flat. In appearances across the state, Christie urged residents to reject any school budget that did not include a pay freeze for teachers. They responded by rejecting 58 percent of the school budgets last April.
Christie described the rejection rate as “a seismic change” that is reflective of a new attitude in New Jersey. “They [the voters] want, real fundamental change,” he said at a post election press conference. “We didn’t lead in that regard. We merely gave voice to what the people of New Jersey were already feeling.”
Throughout his campaign, Christie was particularly critical of the judiciary and of decisions like Abbott v. Burke that allowed the Supreme Court to impose its political preferences on the public.