The New Jersey Supreme Court: Christie Has Options

In an October, 2009 Star-Ledger editorial board meeting, Republican gubernatorial candidate Chris Christie stated his intention to “change the New Jersey Supreme Court”.   Christie was not specific with regard to the three justices who would be subject to reappointment prior to the 2013 gubernatorial election. 


Subsequently, in an interview with New York Times reporter David Halbfinger published on October 30, 2009, Christie criticized the state’s highest court for “legislating from the bench” and cited three examples: 1) the Abbott v. Burke school funding parity cases; 2) the Mount Laurel low income housing mandate decisions; and 3) the decision allowing Frank Lautenberg to replace Robert Torricelli in 2002 as the Democratic U.S. Senate candidate.  Again, Christie was not specific with regard to whom he might not reappoint to the Court, except to say that “I think that it (the Supreme Court) would be different than it is now.”


While candidate Christie retained flexibility as to his future Supreme Court appointments, Governor Christie is now under heavy political pressure to appoint four new strict constructionist justices prior to the November, 2013 gubernatorial election.  The pressure comes not only from the right wing of the New Jersey Republican Party but also from GOP members of the state Assembly and Senate.  These legislators experienced severe cuts in Fiscal Year 2011 state aid to their constituent school districts due to the necessity of the Christie administration complying with the Abbott mandate.


It is possible, however, for Governor Christie to bring about a more conservative, strict constructionist change in the direction of the New Jersey Supreme Court while only denying reappointment to one present justice, Roberto Rivera-Soto. 


Justice John Wallace’s seven year term expires on May 20, 2010.  His mandatory retirement date, due to his reaching the age of 70, is March 13, 2012.  Various veteran New Jersey GOP conservatives and pundits are insisting that Christie not reappoint Wallace, and they are making this issue a litmus test as to the conservatism of the Governor. 


Yet the truth is that a decision by the Governor to reappoint Wallace would not significantly delay any timetable to achieve a conservative majority on the seven justice Supreme Court.    If Christie denies reappointment to Wallace, he will have the opportunity to appoint three new justices by March 1, 2012.  If Christie decides to reappoint Wallace and wait until his mandatory retirement date to appoint his successor, he will be able to appoint three new justices by March 13, 2012.  Thus, a decision to deny reappointment to Justice Wallace will only accelerate the Christie appointment of three new conservative justices by a mere twelve days.


The Governor may choose to use the issue of the Wallace reappointment as leverage to secure a commitment from Senate President Steve Sweeney to support all future Christie appointments to the Supreme Court, regardless of ideology, as long as there is no competency or ethics issue regarding the prospective appointee.  Justice Wallace is a resident of Sweeney’s district, and his reappointment is a top priority to the Senate President.  Accordingly, in exchange for the Wallace reappointment, Senator Sweeney may well be willing to make such a commitment.   The Senate President is hardly a doctrinaire liberal.


If the Governor and Senate President Sweeney reach agreement as to the reappointment of Justice Wallace, Christie could proceed with the appointment of three new strict constructionist conservative Supreme Court justices according to the following scenario:


1.  Governor Christie announces in the near future that he will not reappoint Justice Roberto Rivera-Soto in view of his being censured by the Supreme Court in 2007.  Ethics has always been a hallmark of Chris Christie throughout his career in politics and government, and his refusal to reappoint Rivera-Soto would be consistent with the Governor’s philosophy and past actions.


At the expiration of Justice Rivera-Soto’s term, September 1, 2011, Governor Christie makes his first appointment to the Supreme Court.


2.  Justice Virginia Long departs from the Supreme Court on her mandatory retirement date of March 1, 2012, and Justice Wallace leaves the Court on his mandatory retirement date of March 13, 2012.  On these two dates, respectively, Governor Christie makes his second and third appointments to the Supreme Court.


Christie needs to have four strict constructionist justices, not just three, for a majority on the high court.  Accordingly, there remains the issue of the reappointment of Justice Helen Hoens, whose term as Justice expires on October 23, 2013 – right at a critical point during the 2013 gubernatorial election campaign.


Justice Hoens is a jurist of high competency and, unlike Justice Rivera-Soto, without any ethical blemish.  It would be difficult politically for Governor Christie to deny reappointment to a woman justice with these qualities right in the middle of his reelection campaign.


Yet Christie may reappoint Justice Hoens and still achieve a strict constructionist majority on the Supreme Court – if she follows the example set by former U.S. Supreme Court Justice Owen Roberts during the first two terms of the administration of former President Franklin D. Roosevelt.


During FDR’s first term, Justice Roberts consistently voted with the anti-New Deal majority on the U.S. Supreme Court which struck down as unconstitutional various New Deal enactments.  In late 1936, however, Roberts began to switch his position on the New Deal.  By the time FDR introduced his “court packing plan” at the beginning of his second term in 1937, Roberts was providing the necessary fifth vote to uphold New Deal legislation.


Governor Christie doubtless will be following the course of the votes cast and opinions written by Justice Hoens over the next three years.  If she follows a strict constructionist course, the Governor may well feel confident that in the future she will join with his three previously appointed justices in refraining from legislating from the bench.  Then, he would have the option of reappointing her and still achieving his goal of a more strict constructionist New Jersey Supreme Court.


The switch in direction by Justice Owen Roberts made possible the big government revolution of FDR’s New Deal.  A strict constructionist jurisprudential course on the part of Justice Helen Hoens may well ensure the success of the citizen empowerment, limited government revolution of Governor Chris Christie.


Alan J. Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush. Region 2 EPA consists of the states of New York and New Jersey, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, and seven federally recognized Indian nations.  He currently serves as Public Servant in Residence at Monmouth University. The New Jersey Supreme Court:  Christie Has Options