Bench Memos

NRO’s home for judicial news and analysis.

Chris Christie’s Flack Insults Your Intelligence


Today, NRO’s Eliana Johnson reports on Chris Christie’s irresponsible decision to re-appoint Stuart Rabner as chief justice of the New Jersey supreme court, guaranteeing him a spot on the court until 2030. Christie adviser Bill Palatucci, trying to counter criticism, gives this gem of a quote: “People should hold their views on the chief justice until we get a longer track record and until we see where he comes down on many issues.” Seriously?

Rabner has been on the court for seven years, and his judicial philosophy was well known way back when Christie was running for governor because Christie promised to replace him. Even if we could apply Palatucci’s pass-the-bill-so-we-can-find-out-what’s-in-it approach, there is nothing in our nation’s legal history to suggest that judicial evolution moves in the direction of adherence to traditional legal principles. Regardless, Palatucci may want to familiarize himself with Rabner’s record if he plans on serving on his PR team. Here are some of his greatest hits.

In national legal circles, Rabner is probably most well-known for authoring the New Jersey Supreme Court’s opinion in Garden State Equality v. Dow, which refused to stay a lower court’s order requiring the Christie administration to issue marriage licenses to same-sex couples, despite the state’s traditional marriage laws. Rabner claims that United States v. Windsor “settles” the question of whether states can establish traditional marriage definitions. Never mind that Windsor didn’t hold that, or claim to. Never mind that on the same day that Windsor was decided, the U.S. Supreme Court dismissed the case that might have settled that question, Hollingsworth v. Perry. As further support for his idiosyncratic interpretation of Windsor, Rabner cites the behavior of federal administrative agencies. At the very end of the opinion, perhaps mindful that the appeals to authority were really just fig leaves, Rabner goes out of his way to assure readers that the court had “applied settled legal standards” in coming to its conclusion.

Rabner also wrote the opinion striking down the Christie administration’s reorganization plan that would have folded New Jersey’s problem-ridden Council on Affordable Housing — an agency at the heart of the state’s fiscal problems — into another state agency. It’s a fairly technical opinion, but once you make it through the analysis, it’s pretty clear that all New Jersey agencies are in the executive branch under the state constitution, and therefore “all” must be subject to the state’s Reorganization Act unless otherwise stated. But Rabner, not to be dissuaded by text or history, pulls together a series of unrelated cases to synthesize a principle that (contrary to the state constitution) exempts independent agencies from any reorganization by the executive branch. This heretofore-unknown separation of powers principle rests entirely on a novel interpretation of a single word in the Reorganization Act: “of.” This mysterious principle also seems only to have applied to Governor Christie’s administration.

Finally, Rabner wrote an opinion in a family-law case that spends most of its words trying to explain why a mother with a prior history of drug use during pregnancy isn’t abusing or neglecting her child by ingesting cocaine two days before the child is born, even when doctors can show conclusively that the cocaine went through the child’s system. (The mother said that, by the way, she might have ingested cocaine two days before delivery when a friend spilled a bag of it onto her.) To accomplish his end result, Rabner construes the term “child” so narrowly that he ignores any harm to the child that might occur while it was in utero, even when the baby is born two days later with the metabolized drugs still in its system. That is quite a distinction without much of a difference.

I find it mindboggling that a guy like Christie, who prides himself on being able to steamroll his opponents (and apparently his allies), would renominate a man who has so thoroughly thwarted Christie’s economic agenda in New Jersey. Bipartisanship? Doubtful. Whatever the reason, Christie’s flacks can’t get around the fact that his broken promise will resonate until at least 2030, long after his presidential ambitions are frustrated.


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