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.
“Many of these decisions have been results in search of a
rationale,” Christie has observed. “And that’s not the way to
appropriately interpret the laws and interpret the constitution.
And there have been any number of examples of that over
time.”
Christie set off a dispute last May with the state Senate
when he decided against the reappointment of a sitting Supreme
Court justice. Under the N.J. Constitution ratified in 1947, all
lower-court judges and Supreme Court justices are appointed by the
governor. After a period of seven years, they are then eligible to
be reappointed by the governor with tenure until mandatory
retirement at 70.
When Associate Justice John Wallace petitioned for
reappointment, Christie took the opportunity to deliver on his
campaign pledge to remake the judiciary and settled on an
alternative nominee last May. It was the first time in 63 years
that a Supreme Court judge seeking tenure was denied. However,
Senate President Stephen Sweeney, a Democrat, refuses to hold
confirmation hearings for Anne Patterson, the former deputy state
attorney general, whom Christie has selected.
“Revolution is a good word to describe what Governor
Christie is trying to do,” said Thomas A. Gentile, a New Jersey
attorney who is active in the Federalist Society. “Christie
campaigned for governor on his unabashed promise to end the New
Jersey Supreme Court’s decades of over-reaching. His ultimate goal
is to restore to the governor and to the legislature the
constitutional powers that Supreme Court decisions such as Abbott
and Mount Laurel have entrenched in the hands of the judiciary.
Those decisions — with their court-imposed spending requirements
and endless judicial oversight — have handcuffed the governor and
the legislature, preventing them from implementing innovative
solutions that go beyond just spending more taxpayer dollars on the
same old failed approaches that the Supreme Court years ago imposed
unilaterally. That’s why Governor Christie has made it a priority
to end judicial activism in New Jersey.”
Gentile, who in 1996 and 1997 served as a law clerk to
Samuel A. Alito, Jr. (then a Judge of the United States Court of
Appeals for the Third Circuit), anticipates that Governor Christie
will make the composition of the state Supreme Court an issue in
New Jersey’s next round of legislative elections this fall. “In
2010 Governor Christie upended politics-as-usual in New Jersey by
urging the people to come out to vote in local school budget
elections,” he observed. “Governor Christie transformed those
school budget elections — which had always been rubber-stampings
of backroom deals between unions and municipalities — into
referenda on his agendas of fiscal and educational
reform.”
There is no debating the legal standing Gov. Christie has
to deny reappointments and to make his own selections, Earl Maltz,
a Rutgers University law professor, said in an interview. Although
the standoff between Gov. Christie and Sen. Sweeney has disrupted
the normal flow of politics in New Jersey, there is a potential
upshot in that it could help clarify key constitutional questions,
the Rutgers professor points out.
There is an argument to be made, for example, that a
careful reading of the state constitution precludes Chief Justice
Stuart Rabner from making a temporary appointment to the court,
unless it falls short of a quorum. Nevertheless, Rabner has
appointed Chief Appellate Judge Edwin Stern to fill Wallace’s
seat.
“I think he [Rabner] lacked the authority to make this
appointment particularly within the context of the situation we are
talking about,” Maltz said. “To be fair, he’s not the first to do
this. That authority only comes into play when the court falls
below the number needed to have a quorum and this could become an
issue once we have another vacancy, which will be soon.”
Justice Roberto Rivera-Soto has already announced that he
will step down in September.
“That’s when the legalities get a little dicey,” Maltz
observed. “Once you get below five justices you do not have a
quorum and at that point it’s pretty clear the chief justice can
make appointments.”
Although Christie has the option of making a recess
appointment, which would expire at the end of the next regular
session in the N.J. Senate, he has made it clear that another
appointment will not be made until after his current nominee
receives a hearing.
Within the next few months, the standoff between Gov.
Christie and Sen. Sweeney will likely come to a head. The Supreme
Court has asked Superior Court Judge Peter Doyne to
hold fact-finding hearings on the $820 million Gov. Christie has
cut from public schools in an effort to close the state’s budget
gap. If Doyne recommends a restoration of the funding, Christie
could take the opportunity to force a final showdown over the
court’s ability to shape policy without popular consent.
It is worth recalling that when taxes were imposed on New
Jersey residents during the colonial era without any recourse to
elected officials, it was called “tyranny.” In the current
political cycle, Sen. Sweeney calls it “judicial
independence.”
