It is one of the epic cases central to Gov. Chris Christie’s attempts to remake the New Jersey Supreme Court. Now it will likely be the first one heard while the court sits in nearly unprecedented upheaval.
The court this week alerted lawyers for the latest round of the Abbott v. Burke school funding case that it would hear oral arguments in its first session of the new year, tentatively set for Tuesday, January 4.
The court said it would only hear from the parties in the case, the state Attorney General’s office and the Education Law Center, representing the plaintiffs. Several school districts and other organizations have filed as friends of the court but will not be heard, according to the notification sent to lawyers on Monday.
But while on the docket will be the law center’s constitutional challenge to Christie’s across-the-board cuts in school aid last summer -- no small topic in itself -- much of the attention will likely be on the court itself.
Christie has not been shy about his opposition to the court’s aggressive rulings over the years on a number of hot-button issues, including affordable housing and, in Abbott, school funding. Saying he wants a court that won’t "legislate from the bench," he took the unprecedented step in May of refusing to reappoint a sitting judge, Justice John Wallace, and instead named a new appointee.
The Democrat-led state Senate refused to even hear the appointment, Morristown attorney Anne Patterson, let alone confirm her. That led the court to name a state Superior Court judge to fill the empty seat on a temporary basis.
But then just this week, Justice Roberto Rivera-Soto announced in dissenting opinions on two routine cases that he would abstain from future decisions, claiming the current makeup of the court with the interim replacement was unconstitutional.
"The assignment of a Superior Court judge to serve on this court to fill a vacancy resulting from a political impasse between the executive and the legislative branches," Rivera-Soto wrote, "thrusts the judiciary into that political thicket, all the while improperly advancing one side’s views in preference over the other’s."
That led Senate President Steven Sweeney (D-Gloucester) to demand Rivera-Soto resign, and other Democrats to call for his impeachment.
As the debate rages, that now leaves one less justice to hear the Abbott case next month, and arguably its most conservative member at that. In the meantime, Chief Justice Stuart Rabner has also indicated he will recuse himself by not participating in any of the preliminary rulings. He has not said why, but he sat out the last Abbott case and was former Gov. Jon Corzine’s attorney general in the formulation of the funding formula under challenge.
With all that tumult, it has left experts and observers guessing as to exactly who will hear the case and what political drama will exist behind the scenes. Adding to the talk is that Rivera-Soto and Rabner are both up for reappointment under Christie as well, as is Justice Helen Hoens.
"Whether Rivera-Soto participates or not, this has become not just about the merits of Abbott but the integrity of the court itself," said Paul Tractenberg, a Rutgers law professor and founder of the Education Law Center who argued the case before the court several times.
“In many cases, the merits are overpowered by all the sturm and drang, not just the Supreme Court but the judiciary in general,” he said. “The court is really on the hot-seat.”
How the justices rule on this particular case is sure to only heighten the debate, not to mention prove pivotal in how the state funds public schools next year.
The Education Law Center has contended that Christie’s refusal to fund the School Finance Reform Act runs explicitly counter to the court’s last Abbott ruling in 2009, which required the SFRA be fully funded for it to be constitutional.
The Christie administration has argued back that the economic crisis required cuts in state aid to schools, and its statewide reductions that amounted to 5 percent of every local school budget was the fairest strategy.