Five justices, Many Questions

John Mooney | May 24, 2011 | Education
Abbott ruling due today from short-handed court with disparate interests

The New Jersey Supreme Court will issue today its 21st ruling in the long-running Abbott v. Burke school equity case, with the decision set to be posted on the court’s website at 10 a.m.

Guessing the court’s sentiment has become a parlor game in Trenton and beyond, both publicly and privately.

Will the justices order full funding of the state’s school finance law and order more money for the state’s schools, as the plaintiffs have demanded? Or will they back the Christie administration’s argument that enough has been spent and no more can be afforded?

Or will it be somewhere in between, maybe a phase-in of additional funding with some time to revisit the formula?

The stakes are high, both in dollars and programs, with as much as $2 billion said to be in the balance. But will the latest revenue estimates of an unforeseen $900 million in income and other taxes this year make a difference, too?

And the court itself could be in the balance as well, with Christie ever critical of the court and poised to replace three of the justices. In that climate, will the court strive for a unanimous decision on the already short-handed roster or be content with a divided ruling that could open to even more criticism.

Given any conjecture at this point will be moot at 10:01 a.m., we instead offer a scorecard at the five justices who will be in play and some thoughts as to what each may bring to the decision.

Jaynee LaVecchia

Batting lead-off, so to speak, LaVecchia wrote the last Abbott decision that upheld the School Funding Reform Act and appears a sure bet to vote the same way again. She is leading candidate to author it as well, if she’s in the majority. Appointed by former Gov. Christie Whitman in 2000, she has tenure and her seat is safe. Still, she is known as an independent jurist and one that did serve in previous Republican administrations under Whitman and former Gov. Thomas Kean.

Barry T. Albin

Probably the court’s most liberal member, Albin has proved a lightning rod for his liberal views. Christie has specifically called out Albin for his queries during the oral arguments that posed the question of whether the state could indeed have afforded the full funding if the governor had not rejected the so-called millionaire’s tax. Now, there’s another $900 million in the table. Will that add to Albin’s line of questioning? Appointed by former Gov. James McGreevey in 2002, his seat is safe.

Edwin H. Stern

Maybe the wild card in the mix, Stern was appointed by the court to fill in during the governor’s and legislature’s recent tug-of-war over court vacancies. A member of the state’s appellate court, he has a reputation as a “judge’s judge” and one who some said would stand up for legal precedent. His vote is sure to be pivotal, so much so that Christie has specifically decried the possibility of a temporary replacement being the deciding vote in a 3-2 decision.

Roberto A. Rivera-Soto

Rivera-Soto has announced he will not seek reappointment, ending what has been a tumultuous term since his appointment by McGreevey in 2004. But through that he has been maybe the court’s most conservative member and the most outspoken in oral arguments over the Abbott case. Still, he did join the last decision written by LaVecchia and was silent in the spring arguments. There is also the possibility he will sit out the decision altogether, as he has raised the possibility as a protest of the Stern promotion.

Helen E. Hoens

The newest associate justice, appointed by former Jon Corzine in 2006, Hoens also joined the last opinion and remained relatively quiet in the oral arguments. But she is up for reappointment and could feel some pressure. But her greatest leverage in influencing the court’s decision could be that she would be the vote that takes Abbott XXI from a 3-2 decision to a four-member or even unanimous one.