The nation’s political landscape is littered with the remnants of clashes between chief executives — joined on occasion by the legislative branch — and the judiciary.
The history is long and rich, epitomizing the tensions inherent in the Constitution between a political class seeking to advance a partisan ideological agenda and an unbiased judiciary responsible for determining whether the agenda is permissible. Collisions, ill will, and bruised egos are inevitable.
One hundred eighty-one years ago, for example, President Andrew Jackson responded to a Supreme Court ruling he didn’t like by suggesting that since the court made the decision it should take it upon itself to enforce it.
President Eisenhower groused that his selection of Earl Warren as Chief Justice was the worst mistake he’d ever made. Two years ago President Obama, in his nationally televised State of the Union address, scolded members of the Court for their ruling in a campaign finance case.
For more than 40 years, the Court has been vilified
for finding a woman’s right to an abortion in the Constitution, and there is a hardcore group that continues to deny the legitimacy of the George W. Bush presidency because of the ruling that ended the recount of the 2000 election.
The Court’s most recent rulings, upholding Obamacare, striking down the Defense of Marriage Act, and overturning a key component of the Voting Rights Act provided ample opportunity for outrage from left and right alike.
In New Jersey, a series of state Supreme Court rulings over four decades ordering increased state aid to at-risk school districts has driven governors and legislators to distraction, and none has been restrained in voicing their displeasure.
Former Gov. Tom Kean once suggested that the state Supreme Court opinion requiring municipalities to provide for low-income housing — the so-called Mount Laurel decision — bordered on socialism.
Until the administration of Gov. Chris Christie, however, official reaction never extended beyond complaining and expressing disagreement with the court.
From his refusal in 2010 to nominate Associate Justice John Wallace to a tenured term to his latest rhetorical bludgeoning of Chief Justice Stuart Rabner, Christie has made it clear that each decision with which he differs intensifies his desire to remake the court to more closely reflect his political philosophy.
He’s taken his case to his town hall gatherings, telling audiences that they are paying higher property taxes because of the Court’s rulings in education-funding cases and a change in the court’s composition is essential to bring taxes under control.
While his predecessors grumbled and groused in public and used stronger language in private about certain of the Court’s findings, Christie has been clear that if he considers it necessary to deny tenure to a sitting judge or justice because of a disagreement over a ruling or rulings, he is ready to exercise his constitutional authority to do so.
When Justice Barry Albin (who enjoys tenure protection) raised the specter of politicizing the court and undermining its independence, the governor accused him of grandstanding and pandering to an audience of lawyers.
It is, however, undeniable that Christie has taken his disagreements with the court to a higher level than his predecessors.
His criticism of Rabner for ruling that he did not possess the unilateral authority to abolish the Council on Affordable Housing produced news stories focused not on the decision or its impact, but on speculation that the Chief Justice’s prospects for tenure when his term expires next June were in jeopardy.
Christie accused Rabner of leading an activist court, even though the decision did not prohibit the abolition of COAH, but said it must be done through a repeal of the statue that created it. Rather than assuming an activist role, the Court charted a course for the governor to accomplish his goal. The ferocity of his response seemed disproportionate to the impact of the decision.
The Court has frequently been accused of uncontrolled activism, legislating from the bench, interfering with the powers of the other branches, and usurping legislative or executive prerogatives.
It’s the kind of rhetoric usually heard from the side that has lost its case. In those instances in which the Court has ruled favorably, it is usually complimented for its sagacity and insight.
An independent judiciary and public confidence in a court system that produces rulings and opinions based on constitutional and statutory interpretations are widely supported principles.
Citizens who turn to the courts to air grievances and seek relief are entitled to assurances that the integrity and fairness of the system have not been compromised or undermined by political pressures. Anything less will result in systemic dysfunction and loss of trust.
The Constitutional authority to select and nominate judges of the Superior Court and justices of the Supreme Court rests solely with the governor. Approval of his nominees rests solely with the Senate.
His refusal to nominate Justice Wallace produced a political uproar whose effects are still being felt. Should he decide to replace Chief Justice Rabner, the political fallout will exceed any in recent memory.
While Christie’s criticism of the decision in the COAH case was directed at Rabner, the underlying message to other nontenured judges was unmistakable — their decisions will be a deciding factor in whether they will win renomination.
Christie’s frustration was shared by previous governors who felt that the Court stymied their efforts to implement their agendas.
In the end, however, all concluded that going about their task in a different fashion was preferable to having a judiciary that kept one eye on the constitution and the other on election returns.