A politically endangered species: An independent high court for NJ

justices

Those who love and respect the law recently could savor two courageous decisions by New Jersey’s Supreme Court, a panel that enjoyed a national reputation as one of the best, brightest, and most politically independent—but now faces a grim future.

A grim future because Gov. Chris Christie has promised to destroy its independence. He says it is too “liberal”.

The Court ruled police must obtain a search warrant before using cell phone records to track criminal suspects. It also ruled Christie does not have unlimited power to abolish public agencies invested with a measure of independence. Imagine–even Chris Christie has to abide by the law and someone besides himself can act with independence.

They were both courageous and forward-looking decisions, the sort New Jersey residents have expected from their highest court for decades. But the court–and especially Chief Justice Stuart Rabner–are likely to pay a high political price for their gutsiness.

Rabner is up for reappointment next year and Christie has shown no shame in trying to force the court into his own distorted, right-wing image. After the court ruled he could not unilaterally eliminate the Council on Affordable Housing (COAH), the governor denounced the court as “liberal” and Rabner as an “activist” who acted “arrogantly.”

Which, of course, translates into: Christie is king and everyone is supposed to do what he wants, including brilliant judges who care about issues more important than the 2016 Republican ticket.

Christie has done whatever he could to smear and bully the court because, under Rabner, it has had the temerity to remember a classier, more intelligent New Jersey that didn’t exist solely as the political plaything of a mediocre Morris County politician who harbors presidential ambitions. Christie denied tenure to the only African-American serving on the court. He cynically pretended that an essential and traditional protection for judicial independence–protecting the pay of sitting judges–was merely a self-serving, selfish ruling. He fumed because the court actually believed public schools should be funded according to the law.

Yet, somehow, he didn’t see the conflict in allowing one justice to participate in cases in which her husband’s boss–Chris Christie–has a political interest. Helen Hoens’ husband, Robert Schwaneberg, a former Star-Ledger reporter, worked for the administration when Hoens voted in the minority on the school funding issue.

Matters of principle never seem to trouble this governor.

Want to see principle? Read Chief Justice Rabner’s masterful decision in State v. Earls in which the court–unanimously this time–ruled that cell phones are not handy little gadgets to make life easier for prosecutors.

“With increasing accuracy, cell phones can now trace our daily movements and
disclose not only where individuals are located at a point in time but also
which shops, doctors, religious services, and political events they go to, and
with whom they choose to associate. Yet people do not buy cell phones to serve
as tracking devices or reasonably expect them to be used by the government in
that way. We therefore find that individuals have a reasonable expectation of
privacy in the location of their cell phones under the State Constitution.”

As has happened historically, New Jersey’s highest court put itself out in front of the federal government in protecting its citizens from government snooping. The decision doesn’t say police cannot use cell phones to track bad guys. Law enforcement just has to get a warrant. It has to persuade a judge–let’s hope a politically independent judge–that it has probable cause.

The other decision blocked Christie from eliminating a bipartisan 12-member commission charged with enforcing a previous court ruling–the so-called Mt. Laurel decision–that insisted New Jersey’s municipalities had a constitutional obligation to provide affordable housing to low-income residents.

Imagine that. Something for the poor in a state where, with people like Christie in leadership, only millionaires should get the breaks. No wonder the governor thinks it’s radical. About as radical as the Sermon on the Mount.

The COAH decision was more politically courageous but less legally dramatic than the cell phone ruling. The Earls case broke new ground. The COAH case was, well, a no brainer–as long as your brain and soul are not owned by the governor. The law creating this and other commissions makes it clear they cannot be eliminated simply by an exercise of the will of this or any other governor.

“Words make a difference,” Rabner wrote. “In case after case, we note that it is the Court’s responsibility to give force to the words the Legislature has chosen and not rewrite plainly written laws.”

Rabner was far from an activist in this case and, if Christie doesn’t know it, the lawyers who work for him do. Including, presumably, Robert Schwaneberg, whose wife Helen Hoens once again backed an administration decision.

If Christie is re-elected–and New Jersey’s Democrats appear to be determined he will be–he will undoubtedly remake the court to his liking. Yet it’s unlikely what happens to an independent judiciary will be on the feverish minds of those who inexplicably believe he has earned another term.

Why worry about independent courts when we are reminded daily of Superstorm Sandy–and of cameo appearances on television shows?

 

To see an archive of Bob Braun’s columns in The Star-Ledger, go to http://blog.nj.com/njv_bob_braun/index.html

 

 

 

 

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