The political star of Governor Chris Christie in New Jersey is deservedly in the ascendant. He has confronted public employees and their avaricious unions (particularly teachers) with a long-overdue lesson in fiscal realism. Another fight that is at least as welcome is Christie’s bold decision not to reappoint Justice John Wallace, Jr., to the state supreme court. Anyone who cares about the constitutional exercise of political power should watch this struggle carefully. Christie is waging war against the judicial supremacy of the country’s most radical state court.
In New Jersey, under the constitution promulgated 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 seventy. Since 1947, no justice of the Supreme Court prior to Wallace has failed to be reappointed.
Wallace was appointed in 2002 by Gov. Jim McGreevey. His reappointment presented the first opportunity for Christie to fulfill his campaign promise to change the direction of the Supreme Court. By not reappointing Wallace (the court’s only black jurist), Christie has set off a storm of controversy. The president of the state Senate, Senator Stephen Sweeney, has announced that he will not hold confirmation hearings for Christie’s replacement, Anne Patterson, a well respected lawyer in private practice. With three more appointments in his first term, Christie has the opportunity to reshape this seven-member tribunal.
New Jersey’s highest court has made usurpation of legislative and executive authority a hallmark of its jurisprudence. For example, the court under Chief Justice Robert Wilentz (1979-1996), the Great Helmsman of New Jersey’s culture of judicial overreaching, moved without constitutional warrant into the area of local zoning by compelling communities to provide affordable housing. Known collectively as the Mount Laurel cases, these decisions are exemplars of the court as a collection of unelected social engineers. Moreover, the court has made itself the main player in the funding of public schools with its decades-long war of attrition against local control of school funding through property taxes. The state constitution vests the court with no such authority.
This hyper-aggressive form of government by judiciary continued unabated under Wilentz’s successor as chief justice, Deborah Poritz (1996-2006). In 1999, Poritz wrote the opinion for the court in Dale v. Boy Scouts of America. Infamously, the court forced the Scouts to accept an openly homosexual leader under the state’s antidiscrimination statute. The law required nothing of the sort, but the court brushed aside carefully crafted legislative language in favor of its own policy preference of acceptance of homosexual conduct. (Subsequently, the United States Supreme Court reversed this decision under the first amendment.)
In 2000, Poritz again wrote for the court in striking down New Jersey’s law requiring parental notification for a minor seeking an abortion. Such laws have routinely been upheld under federal challenge; nevertheless, the court found that under the state constitution this requirement went too far. The constitution of course has nothing in it at all to support this decision, which is why the court relied on such authorities as a column from The New York Times by Anna Quindlen. Even by the standards of New Jersey, this decision was a striking act of judicial invention.
These decisions, and numerous others like them, reflect a court that has inflicted severe damage on the practice of representative government in New Jersey. The court has ignored its constitutional role and transformed itself into a major policy-maker in the state. These are not cases that involve close calls regarding judicial involvement; they are naked usurpations of the powers of the other branches of government.
Christie’s decision to not reappoint Justice Wallace is an attempt to return sound jurisprudence to New Jersey. And in response to his decision, there has been a wave of predictable and tedious sermons about this threat to judicial independence. But his decision not to reappoint Wallace has nothing at all to do with judicial independence. The court’s power to interpret and apply statutory and constitutional law is undisturbed. What is being challenged by Christie is the grave and protracted abuse of this legitimate power by the court in order to impose policy preferences on the state’s citizenry.
Notwithstanding this obvious point, eight retired justices of the state Supreme Court issued a dark warning about this use of the appointment authority: “No Governor before now has sought to control the third branch of government through the reappointment process.”
Christie was rightly dismissive of this pretentious silliness when asked by a reporter about it: “Well tell [the retired justices] thanks for the input. Appreciate it. But as they well know, being Supreme Court justices, the constitution very clearly vests in the governor the ability to decide who is appointed to the Supreme Court. Not to anyone else other than the governor. And certainly not to former justices of the Supreme Court who got there because a governor selected them. So I appreciate their input and I honor their service.”
As a constitutional matter, Christie has acted properly with this decision. Earl Maltz, a professor at Rutgers Law School in Camden and an excellent constitutional analyst, provided this summary of the pertinent constitutional language: “This plainly does not contemplate automatic reappointment of justices for life after the expiration of their initial seven-year terms, or even a presumption of reappointment. Rather, it implicitly calls on both the governor and the state Legislature to reevaluate the situation at the end of a seven-year term and determine whether a reappointment would be in the state’s best interests. In deciding Patterson would be a better choice than Wallace, Christie has done no more than make that value judgment.”
Conservatives have been very astute in their efforts to halt and, where possible, reverse the adventurism of federal courts. At the state level in general and in New Jersey specifically, this sort of vigilance has rarely existed. The Supreme Court has issued one radical, result-driven decision after another with no significant resistance. With Christie, the unchecked assault on majority rule by the state Supreme Court has finally begun to be checked. His decision leaves the independence of the judiciary secure. The making of policy, however, is a function that is being returned to elected officials. That is to say, the proper allocation of power under the state constitution is being restored. This vindication of the rule of law should be embraced by all New Jersey residents.
Gregory J. Sullivan is a lawyer in New Jersey. He has written for First Things and The Weekly Standard.
Copyright 2010 The Witherspoon Institute. All rights reserved.