Legislators Take Aim at the Judiciary, And Our Rights

Festering like undiagnosed tumors in the state legislature are two proposed Constitutional amendments that, if ever enacted, would metastasize and demolish our three-branched system as we know it. Though shrouded at the moment, these proposals are clearly aimed at impeding and preventing the state government – particularly the judiciary – from responding to change and carrying out its most basic functions. And ironically enough, both proposed amendments claim that they aim to make government ‘better’ by making it ‘more democratic.’ What they miss, or willingly ignore, is the fact that living in a modern democracy is about more than just people voting and making laws; it’s about protecting the rights of the people and balancing our three branches of government to prevent tyranny.

 

When our state constitution was approved in the late 1940’s, it was regarded as a model for the nation, and in many ways it remains so. Delegates meeting on the campus at Rutgers in New Brunswick were determined to learn from the mistakes not only in New Jersey’s past, but the nation’s as a whole. When it came to their design for the judiciary, the delegates were especially careful. To create an efficient and balanced government, to understand what not to do, they looked South (but more on that later).

 

In our State Constitution as it now stands, the judiciary is charged with interpreting the laws. Its formal decisions are, in fact, law. Like the U.S. Supreme Court, our State Supreme Court can and has over the years declared laws passed by the Legislature as “unconstitutional and void.” It has done this with county and town ordinances as well, as it sees fit. Though I’m not sure if it has yet happened, the Court also has the power to nullify any proclamations or orders of the governor, or anyone in the Executive branch, that it deems unconstitutional. Checks and balances; it’s what this is all about. It’s what keeps us free.

 

The Delegates at New Brunswick also created an interesting way for our justices to gain office and stay there. On the Federal level, we know that the president appoints Supreme Court justices with a 2/3 confirmation from the U.S. Senate. Once approved, these Federal Justices serve for life terms. In the Federalist Papers, one of the nation’s Founding Fathers and perhaps its greatest legal mind, James Madison, justified the lifetime appointment. Madison theorized that since interpreting the law is a scholarly activity, and not a political one, judges need to be insulated from elections so they can make their decisions free of undue public pressure. Yes, judges serve the people, but not by reflecting whatever the electorate feels at any given time. Rather, judges serve by protecting the people from unconstitutional laws and illegal actions of the other branches. Does any judiciary branch every do this perfectly? No. But on the Federal level and in all 50 states, Supreme Court justices try.

 

The Delegates at New Brunswick created a system in which to gain appointment to the State Supreme Court, a justice must be appointed by the governor and confirmed by a 2/3 vote of the State Senate. But this first appointment is not a lifetime term; after seven years the justice must be reappointed and reconfirmed by the governor and State Senate accordingly. Only upon being successful in that second process can lifetime tenure be gained. In New Jersey, this system has had mixed effects. Though ostensibly designed to prevent incompetent justices from gaining lifetime appointments, it’s become hopelessly politicized. Nevertheless, it’s what we’ve got, and overall, our state judicial system has worked well.

 

Let’s return to our two proposed constitutional amendments, propositions are that are inherently destructive and misguided, because all of this is related.   

 

The first is ACR47. If ever enacted, the bill would transform the appointment system and replace it with a partially elective one. Justices to the Supreme Court would still need the governor’s appointment for their first five-year term, but to gain lifetime tenure they would have to win a statewide election. This practice would corrupt our judicial system and open judges up to activities that are completely unrelated to their duties, or perhaps, running counter to them. Electing judges is a common practice in Southern states from municipal judges to Supreme Court justices. In states like Alabama and Florida, elections have produced generations of hapless backslapping politicians more concerned with fundraising and dinner parties than making tough but necessary decisions. Many scholars have argued, and they would be correct, that the system of judicial elections is one of the primary reasons why racial segregation, violence, job discrimination and injustice lasted in the South well into the 20th century. For now, in New Jersey, when anyone appears before a judge they’re facing a professional, not a good ol’ boy.

 

Meanwhile, in the State Senate, SCR28 obliterates the most important power of the state judiciary: the ability to declare a law unconstitutional. Under this proposed amendment, if enacted most decisions of the Supreme Court – especially if they involve money – can be overturned by the Legislature with a 2/3 vote in each house.

 

This would open up a serious Pandora’s box by politicizing every judicial decision ever decided or yet to be decided. It would be the equivalent of allowing Congress to reverse progressive Supreme Court decisions validated as right and just by history but were extremely unpopular during their time. An entire body of law, decades of precedents by the N.J. Supreme Court could now be simply reversed and cancelled. If this were possible, why even have a judicial branch to begin with? Why not just let the Legislature decide what everything means at all times? Why not just allow an elected body of people to legislate away our most sacred rights and liberties if enough of them deem so?

 

What’s in Trenton’s water these days? What are these elected officials thinking? Did any of them take Basic Civics in Middle School? Don’t they understand the concept of “Separation of Powers” or did they cut class that day?

 

Perhaps the only laws we need are for additional attendance officers at our Middle Schools…