As he transitioned away from New Deal liberalism to Goldwater conservatism in the 1950s, Ronald Reagan began to speak out against "the enemy within" in a series of powerful speeches that celebrated America's founding principles. In his commencement address at William Woods College in 1952, and at Eureka College, his alma matter, in 1957, the future president described America as a divinely inspired, historically distinct country.
This idea of "American exceptionalism" also figured into the 1964 "Time for Choosing" speech, Reagan delivered on behalf of Sen. Barry Goldwater of Arizona, the Republican candidate for president. But the 1964 speech included an additional component that foresaw the dangers of a renegade judiciary; one that willingly bypasses constitutional restraints. The conflict between Gov. Chris Christie of New Jersey and his state's Supreme Court interconnects with the anti-constitutional impulses of unelected elites that Reagan foresaw during the Goldwater campaign.
Even as he remained focused on the external threat of Soviet communism during the Goldwater campaign, Reagan also felt a special need to uplift the political system created in 1776 and to defend it against a growing domestic menace. George Nash, a historian and author, who has written extensively on the modern conservative movement, has carefully traced Reagan's political journey.
Nash, who is also a senior fellow with the Russell Kirk Center for Cultural Renewal, discussed Reagan's contributions to the concept of American exceptionalism and the timeless appeal of his message during a symposium on the Reagan presidency held earlier this year at Regent University in Virginia Beach.
"He [Reagan] began to speak about the enemy within, the assault at home from those who are either wittingly or unwittingly steering us toward a bureaucratized all powerful state in which government would be a big brother and the individual would be absolutely powerless," Nash explained in his presentation. "In speech after speech, he railed at the growing complexity, profligacy and unaccountability of centralized government."
The notion of self-government that was so central to American Revolution was in jeopardy and could be lost to centralized planners, Reagan warned in his 1964 speech.
"If we lose freedom here, there's no place to escape to," he said. "This is the last stand on earth. And this idea that government is beholden to the people, that it has no other source of power except the sovereign people, is still the newest and the most unique idea in all the long history of man's relation to man. This is the issue of this election: Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves."
Unfortunately, New Jersey has succumbed to the power and influence of its unelected judiciary; the very sort of entity that Reagan identified as a potentially lethal threat to the American constitutional order. Despite its own rich revolutionary history, the state has followed a progressive trajectory over the past few decades divorced from constitutional government. As much as contemporary residents relish and revere the "Spirit of 1776," they actually inhabit a world that was reshaped by the N.J. Supreme Court with a series of rulings on education policy that reach back to Robinson v. Cahill in 1973. That would be the year self-government died in the Garden State.
AT A TIME WHEN the nation is commemorating the 100th anniversary of the former president's birthday, Christie has very appropriately invoked Reaganesque language in an effort to restore constitutional checks and balances for the benefit of his overtaxed, underrepresented constituents. Christie explicitly campaigned on reforming the N.J. Supreme Court, which has a long history of intruding upon the policy-making authority of the executive and legislative branches. Before the end of his first term, Christie will get that chance. Up until now, elected officials in both parties have permitted the judiciary to interject itself into the public arena at taxpayer expense without a vigorous response.
"We've had an unholy alliance of Republicans and Democrats in this state who have the same belief in a progressive interpretation of the constitution that ignores fixed meanings," Assemblyman Michael Patrick Carroll laments. "This goes a long way toward explaining where we are right now. Judges have consistently substituted their own public policy views for the actual language of the constitution." An outspoken conservative, Carroll has been sharply critical of his own Republican governors for selecting activist judges who have appointed themselves as the high authority on policy matters that fall outside of the court's purview.
At issue now, is the latest Abbott v. Burke ruling, which orders the governor and state lawmakers to spend an additional $500 million on schools. In a 3-2 decision, the N.J. Supreme Court has once again declared that it alone has the final say in determining what level of funding satisfies the constitution's requirement of a "through and efficient" education system. The Newark-based Education Law Center, which brought the suit, argued for a larger restoration of funding to the tune of $1.7 million for the 205 school districts that were not sufficiently funded in their estimation. In a separate concurring opinion, Associate Justice Barry Albin expressed his preference for this larger settlement. But in the end, the court narrowed its ruling to cover just the 31 Abbott districts that were part of the original case in 1985. The dissenting justices rebuked the court for further burdening the state's already beleaguered taxpayers. But what's really at issue here is a long overdue effort on the part of a tenacious chief executive to restore the court to its proper station in constitutional orbit. Unlike his predecessors, Gov. Christie has been willing to call out unelected judges who have coerced their overpriced, ineffectual policy preferences on the public and usurped the power to tax and spend from elected lawmakers.
The N.J. Supreme Court justices do not see themselves as a co-equal branch of government, but as a superior branch of government, Gov. Christie explained during a town hall meeting in Robbinsville, N.J. in June last year.
"Now this [Abbott v. Burke] has been an experiment that has been going on for 20 plus years and yet we don't see much improvement in our public schools," Christie said. "So, the Supreme Court's theory that if you put more money in it [the schools] it's just going to get better by magic has proven to be wrong. And, so, if people wonder why I want to change the Supreme Court, it's because I don't have the flexibility to change the school funding formula…They've taken the power out of hands of the legislature to make this judgment and out of the hands of the governor and the courts are making it. We'll that's wrong, if judges want to legislate, they should run for the legislature."
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 become eligible for reappointment by the governor with tenure until mandatory retirement at 70. The N.J. high court is comprised of seven members, including a chief justice and six associated justices. At present, the court includes four Democrats, two Republicans and one independent.
When Associate Justice John Wallace petitioned for reappointment last year, Christie took the opportunity to deliver on his campaign pledge to remake the judiciary and settled on an alternative nominee. It was the first time in 63 years that a N.J. Supreme Court judge seeking tenure was denied. Wallace had been part of the problem, Christie explained in his talk. Senate President Stephen Sweeny blocked confirmation hearings for Anne Patterson, Christie's nominee, for a full year. They reached a compromise in May when Sweeney agreed to have Patterson replace Rivera-Soto instead, who is stepping down come September. Patterson, a former deputy state attorney general, was approved by the Senate Judiciary Committee in an 11-1 vote and last week is expected to secure approval from the full Senate.
Chief Justice Stuart Rabner has elevated Judge Edwin Stern, an appellate court judge, to fill open Wallace's seat. Some legal scholars, most notably, Earl Maltz, a Rutgers University law professor, have argued this move is unconstitutional since the N.J. Constitution makes it clear that the chief justice can only move to fill an opening when there is no quorum on the court.
Nevertheless, Christie is expected to have three more openings to fill before the end of his first term. Future nominees will likely be asked about their views on the court's role in education policy.
During her hearing, Patterson declined to speak directly about Abbott v. Burke but did say that judicial precedence carries weight.
"I don't think it's appropriate for me to talk about Abbott v. Burke issues," she said in response to questions. "It is a case not leaving the court."
While it is reasonable to view the latest Abbott ruling as a direct application of precedence, it is also important to consider that latest decision was handed within a highly charged political environment, Robert Williams, a professor of law at Rutgers University, observed in a recent conference call.
"The governor has said that he wants to change the court, and many people think he was threatening the court in various ways, and the court came back with in some ways a compromise decision." Williams said. "There's a long view to this situation and it needs to be looked at contextually.
When the "thorough and efficient" clause was added to the N.J. Constitution in 1875, there was an understanding at the time that the courts would enforce it, Williams noted. This requirement is seemingly in conflict with the other constitutional clause that says all appropriations are made through the legislature. But because a constitutional right is involved, it can be argued that the court's involvement does not intrude upon the legislature's discretionary power, Williams added. Other legal scholars, including his colleague Maltz, of Rutgers, strongly disagree. The court has "tortured the language" of the N.J. Constitution to create a right that does not exist, he said.
"This is just another hit in a long string of cases where in New Jersey's highest court has taken on the role of judiciary, appropriator and chief executive, Carrie Severino, chief counsel and policy director, of Judicial Crisis Network has observed in her blog. "…In the Abbott v. Burke line of cases, the New Jersey Supreme Court decided that it has the authority to determine what level of funding satisfies the constitution's requirement of a thorough and efficient system and to order the state to spend more if the court is not satisfied. One would have to re-read Justice [Harry] Blackmun's opinion in Roe v. Wade to find a greater example of incoherence and willful judging masked as legal analysis."
In an interview, Severino said that she was hopeful Gov. Christie may yet be able to remake the court by taking advantage of upcoming vacancies.
"Up to this point, it has just been one liberal judge being appointed after another," she noted. "The whole idea behind this case was built on a false foundation. Trying to enforce the constitution by having courts take over the details of budgeting is not the way to go. If we can get truly restrained judges than there is hope for changing the interpretation of these provisions."
Another option would be to amend the state constitution as a way of overturning Abbott. With budgetary pressures continuing to build up in N.J., it may be possible to garner support for this change. The revolutionary notion of "no taxation without representation" is back with a vengeance now that the state is careening toward bankruptcy.
Fred Giordano, a partner with K&L Gates, co-authored a recent Federalist Society white paper that explores the financial impact Abbott and other activist decisions from the N.J. high court have had on the state's financial standing. Giordano and his colleagues report that the cost of complying with Abbott alone is in excess of $37 billion between 1998 and 2008. Giordano's paper also cites a Rutgers University study that points a significant loss in population. Between 2002 and 2006, the state lost 231,565 people.
In his "Time for Choosing" speech, Reagan mentions a Cuban refugee turned businessman who was thankful he could escape to America from the communist island. That businessman would likely feel a similar need to flee from New Jersey.
"With the Abbott ruling, there are some who say the court is doing what courts should do in requiring compliance with the state constitution through the `thorough and efficient' education clause," Giordano said. "But the argument from Gov. Christie, and many others, including some in the legislature, is that the court is not enforcing the constitution, but is actually making law. It is telling these other branches what to do and how much money must be spent."
Whatever one's views are on the constitutional question, there is no getting around the profound impact courts have had on average citizens in their everyday lives, Giordano added. Moreover, despite the vast sums of money that have been poured into Abbott school districts, the weight of evidence shows there has been little, if any, improvement to education, Giordano pointed out.
With regard to education, the N.J. Constitution simply states, "The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for instruction of all children in the state between the ages of five and eighteen years." There is no mention of finance attached to the clause. Furthermore, the state constitution makes it clear that plenary appropriations authority rests with the legislature, not the court.
"It is must be emphasized that the court has not been interpreting the state constitution in this area but implementing its own policy choices," writes Gregory Sullivan, a Hamilton Township attorney, and a Trenton Times columnist. "The thorough-and-efficient-education clause, in its text and history, does not in any way authorize the Court's role in educational spending. Even with the Court's lamentable history of judicial overreaching in any number of areas it is difficult to think of a more obvious example of judicial lawlessness than the school-funding cases."
The other major figure in American history that Gov. Christie might seek to emulate is President Andrew Jackson who balked at the U.S. Supreme Court's 1832 ruling in Worchester v. Georgia. "John Marshall has made his decision; now let him enforce it," Jackson was quoted as saying. Jon Meacham, a Jackson biographer, points out that Jackson's actual comments were more restrained, but the sentiment was real.
Severino, the chief counsel to Judicial Crisis Network, sees political danger in a Jacksonian-type of confrontational approach. If Gov. Christie simply defied the court order, it could create precedence for a future chief executive, who is not as constitutionally rooted as Christie, to then disregard court orders that are actually quite sound, she said. Under this scenario, a future governor might ignore a court ruling that overturned Abbott.
Like Reagan, Christie is relying on his court picks as a way to reinstate the separation of powers and to end the practice of judicial activism. But it is worth recalling that the end result of Reagan's own nomination efforts here were actually quite mixed and judges can be unpredictable.