As much as contemporary N.J. residents very rightfully celebrate their state’s colonial heritage and its connection with the American Revolution, the sad reality is they now inhabit a world that was reshaped by the N.J. Supreme Court beginning in 1973. It was at this point that self-government, as it was described in the Declaration of Independence, became inoperative throughout the Garden State.
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 up through 2009, 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. 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.
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.”
The Supreme Court has asked Superior Court Judge Peter Doyne to hold fact-finding hearings on the $820 million Chris Christie, the Republican governor, has cut from public schools in an effort to close the state’s budget gap. The Education Law Center, a Newark-based nonprofit that advocates for the districts, wants the court to rule that the cutbacks enacted for the 2010-11 school year violate the latest Abbott v. Burke ruling in 2009. 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.
The unelected judiciary and the New Jersey Education Association (NJEA), the state’s powerful teachers union, have long held sway over public policy. But a critical turning point came last April when Christie urged residents to reject any school budget that did not include a pay freeze for teachers. With the state heading toward bankruptcy, public opinion appears to be with Christie. Voters responded by rejecting 58 percent of the school budgets last April. The specter of public employees lobbying the government for increased salaries and greater benefits in the teeth of a recession has not gone over well with the electorate.
“Revolution is a good word for what Gov. Christie is trying to do,” said Thomas Gentile, a N.J. attorney active with the Federalist Society. “We are talking about a radical change in New Jersey politics that could possibly result in profound fiscal reform. The ultimate goal here is to re-empower the governor and the legislature with the ability to push for creative solutions to education such as charter schools and voucher programs that are better suited for the modern age and get beyond the idea of just spending a lot of money. Unfortunately, you can’t begin to scratch the service here with what’s possible under the budget restraints imposed by the New Jersey Supreme Court. That’s why Christie has made it a priority to end judicial activism in his state. That’s now a winning issue politically. The over-reaching of the public employee unions has created the right environment politically for reform.”
Christie has already made good on his pledge to reign in the state’s renegade judiciary.
When Associate Justice John Wallace petitioned for reappointment last year, Christie took the opportunity to deliver on his campaign commitment and settled on an alternative nominee. It was first time in 63 years that a Supreme Court judge seeking tenure was denied. However, Sen. Sweeney, who is closely associated with Wallace, refuses to hold confirmation hearings for Anne Patterson, the former deputy state attorney general, Christie has selected.
Although the standoff between Gov. Christie and Sen. Sweeney has disrupted the normal flow of politics in N.J., there is a potential upshot in that it could help clarify key constitutional questions, Earl Maltz, a Rutgers University law professor has observed. There is no question that Gov. Christie has the authority to deny reappointments and to make his own selections, he said. However, Maltz does not believe Chief Justice Stuart Rabner has the authority to make temporary appointments on the seven member court, unless it falls short of quorum. Nevertheless, Justice 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.”
Between now and when Christie is up for re-election, three more openings are expected on the high court.
Although he does have the option of a recess appointment, which would expire at the end of the next regular session of the N.J. Senate, Maltz does not expect the governor to move in this direction. In fact, Christie has already said that he will not make another appointment until Patterson gets a hearing.
“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.”
The radical notion of self-government, which has been dead and dormant in N.J. since the 1970s, suddenly has a heartbeat. Tea Party activists across the country who pine for a return to the ideals of the founding period might want to get in touch with Sen. Sweeney.
Kevin Mooney is an Investigative Report with the Pelican Institute in New Orleans, La.
