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More Thoughts on the NJ Court’s Power-Grab



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A few more comments on yesterday’s New Jersey Supreme Court decision in Abbott v. Burke, ordering the state to spend an additional $500 million on schools. 

1. Democratic state legislators are salivating at the opportunity to use the Supreme Court’s order as an excuse to raise taxes. Last year Governor Christie vetoed the so-called “millionaire’s tax” that the Democrats wanted. He has made it clear he would veto it again this year. During the Supreme Court’s oral argument, Justice Barry Albin repeatedly asked the Christie administration’s lawyer why they wouldn’t just use that tax to increase revenue for schools. Guess how much it would have raised: $495 million. Yes, I know: Shocking that the Supreme Court would force a spending increase that essentially mirrors the revenue that would be raised by a tax proposal Governor Christie has publicly rejected.

2. The people of New Jersey ought to be outraged that their state’s highest court has unilaterally appointed itself the supreme authority on matters of spending policy, not simply because that would be a bad system in theory, but because it violates New Jersey’s own constitution, which gives plenary appropriations authority to the legislature. And they ought to be even more outraged if legislative leaders acquiesce to this power grab in order to give themselves political cover to raise taxes. In his statement reacting to the case, Governor Christie stated that “New Jersey has some of the highest taxes in America. New Jerseyans are already incredibly overtaxed. Therefore, as I have repeatedly stated, I do not believe raising taxes is the answer.” As I see it, Democratic legislators have two options here: (1) allow the judicial branch to get away with dictating tax increases; or (2) make the difficult choices on the spending side that would prevent such a tax increase. Whatever they decide, I’m sure it will make the next election cycle fairly interesting. 

3. The vote in the case was 3–2, with two justices not participating. One of the three justices in the majority, Edwin Stern, is a temporary justice who has never been nominated by the governor or confirmed by the senate, which is the method set forth in Article VI, Section 6 of the New Jersey Constitution for the selection of New Jersey Supreme Court judges. In fact, he was appointed by Chief Justice Rabner (who did not participate in the case) to fill the vacancy created by the state senate’s ongoing refusal to hold hearings for Governor Christie’s nominee, Anne Patterson. As Professor Earl Maltz has explained, while it is permissible for the chief justice to appoint an interim justice to create a quorum in a case, the chief justice’s authority to appoint Stern to the court in the first place was dubious at best. I won’t speculate about how Ms. Patterson would have voted had she been confirmed in time to hear and decide the case. But I am pretty comfortable saying that the legal and journalistic establishment would have had a conniption fit if a similarly constituted conservative majority had decided a similarly controversial case in Governor Christie’s favor.



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