When Chris Christie broke his promise to fix New Jersey’s Supreme Court — by reappointing Chief Justice Stuart Rabner until 2030 — one of his spokesmen tried to explain, halfheartedly, that “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.”
The biggest problem with this excuse (aside from the fact that Rabner has been on the bench for seven years) is that it’s less important “where” a judge comes down on a legal issue than it is “how” he gets there. In other words, the main question is Rabner’s judicial philosophy: Can he put aside his own policy preferences and faithfully apply the law? For Rabner, the answer is clearly “no.”
An excellent example of this inability to distance himself from his policy preferences is on full display in Sussex Commons Associates, LLC v. Rutgers, a case about the scope of the state’s open records statute. In New Jersey, as in other states, state law provides for public access to the records of state agencies, with various exceptions. The plaintiffs were developers seeking discovery of communications between an environmental law clinic run out of Rutgers Law School-Newark, the Rutgers Environmental Litigation Clinic (RELC), and the defendant.
Writing for the majority, Rabner waxes eloquent about general principles of independence that may apply to Rutgers. But then, in the first sentence of the next section, notes that “this lawsuit is not about whether Rutgers University is subject to” the open records statute. If that issue isn’t relevant, though, what were the preceding four paragraphs all about?
Anyway, when Rabner finally gets to his “analysis,” it’s highly subjective: After citing all of the technical statutory provisions, Rabner ignores them and spends most of his time balancing the pros and cons of ruling either way. Ultimately, Rabner ends up deciding that the open records law doesn’t cover clinical legal records because:
Nothing suggests that the Legislature intended those results . . ., and we do not believe the Legislature meant to harm clinical legal programs when it drafted that important law. . . . To the contrary, the Legislature has repeatedly demonstrated its intent to support Rutgers and higher education for the benefit of the citizens of this State.
But of course an open-records law isn’t intended to “harm” or undermine “support” for state entities. And in any case, Rabner has skipped over the actual text of the law.
To top it all off, instead of satisfying himself that the statutory text is sufficient, Rabner puts the burden back on the legislature: “The Legislature is free to act if we have misread its intent.” Gee, Chief Justice Rabner, I’m sure the Legislature is glad you gave them permission to disagree with you. This isn’t legal analysis; it’s sophistry.
The concurring opinion by Justice Albin, by contrast, shows how to do basic statutory interpretation properly: after determining that the open-records statute covers the records, determine whether a statutory exemption applies. As it turns out, there are three. There was no need for Rabner’s subjective purposivism; the plain text of the statute held the answers.
Indulge me in a hypothetical about the consequences of Rabner’s approach. Let’s say, for instance, that a group of activists files an open-records request in support of a viewpoint that Rabner agrees with, and indeed, has publicly endorsed. Is there any reason to doubt that Rabner would give in to the temptation to say “we do not believe the Legislature meant to harm” the side he happens to agree with?
And Chris Christie re-appointed this guy. Rabner may have got the result right by accident in Sussex Commons Associates, but when a potential Republican presidential candidate starts breaking his promises by re-appointing a guy who can’t recognize when the legislature said something very specific about the content of the law, we’ve got bigger problems.
The difference between “intent” and “meaning” could not be more important. As Justice Scalia and Bryan Garner write in Reading Law, “the state of the assembly’s collective psychology is a hopeless stew of intentions.” If judges go beyond determining the meaning of the words used in the statute, they are just engaging in “policy-based lawmaking,” not interpretation.
Governor Christie may not share these principles, which would explain why he has failed to appoint judges who stand for any approach to jurisprudence other than opposition to the Abbott line of cases. It’s no big step to conclude that Abbott and its progeny are woefully misguided, but it also matters how and why a judge comes to that conclusion. As Rabner’s opinions show, the judge’s reasoning shows whether he’s interpreting the law or just making it up as he goes along.