Judicial Overreach

If one needs any reinforcement of the necessity for care when making judicial appointments, one need only consider the dissenting opinion of the Chief Justice of the Supreme Court of the State of New Jersey in the recent case of Gerrity v. Hilton.

Now, New Jersey’s Supreme Court enjoys a well-deserved reputation as the worst Supreme Court in the United States, the pretensions of the Florida and Nevada Courts notwithstanding. It decisions in school funding, zoning, borrowing, and electoral cases are legendary for the judicial over-reach they demonstrate.

But, of late, a disturbing tendency toward actually reading statutes, and arriving at correct answers, threatens the Court’s reputation. First, the bear hunt case, in which the Court appropriately read the statutory language to accord the DEP Commissioner wide discretion. Then, the verbal threshold case, in which the Court insisted that the language the Legislature wrote meant what it said. In each case, the policy result is problematic, but the Legislature, not the Court, created the problem.

And, now, in a case arising under the Law Against Discrimination, the Court determines that equal treatment means precisely that, and that no special exception for pregnancy exists.

In Gerrity, plaintiff suffered through an exceptionally difficult pregnancy. Defendant employer worked under a policy pursuant to which up to six months of medical leave could be secured for any reason; plaintiff made use of that period, but when she was still unable to return to work as a result of her pregnancy related complications, defendant terminated her. Plaintiff sued, contending that the failure to make special accommodations for pregnancy constituted sex discrimination.

The Court quite properly ruled that the statute requires equal treatment, nothing more. That may, or may not, constitute good policy (it’s a lead pipe cinch that someone will introduce legislation in the Fall to reverse this result and offer special protections for pregnant women) but the Court quite properly deferred to the Legislature to make that policy determination.

What makes Gerrity noteworthy – aside from the atypical deference by the Court to Legislative prerogative – is the spectacularly poorly reasoned dissent from the Chief Justice. Consider just the following quote:

"We have always been vigilant in the protection of civil rights even when the Legislature has not yet addressed the precise form of discrimination before the Court. In doing so, we have not usurped a legislative function; rather, we have recognized the broad remedial purpose that animates the LAD and have interpreted the statute to give effect to that purpose. We have understood that the LAD, stripped to its essence, embodies a simple but powerful idea: that discrimination will not be tolerated in our society."

Translation: if we ignore the words of the statute and discern its "simple but powerful idea", we can arrive at the result we like.

Despite the Chief Justice’s assertion to the contrary, "usurping a legislative function" would be precisely the result of her opinion. Private "discrimination" is not illegal unless the Legislature so determines. The scope of "discrimination" proscribed by statute is, by very definition, a matter of legislative discretion and definition. Ignoring the express and unequivocal words of the statute to arrive at some underlying "purpose" strikes at the heart of the legislative process.

Given that the case arose under a statute, it might seem obvious that the words of the statute control. But not, apparently, if the result thus produced offends the sensibility of the Chief Justice. Instead, she would substitute her view of what the law ought to be for that which the Legislature actually wrote. A clearer example of judicial arrogance would be hard to imagine.
Simply put, if "... the Legislature has not yet addressed the precise form of discrimination before the Court", the only acceptable result at which a Court may arrive is to dismiss the case.

Justice nominee Roberts is reputed to be a "textualist", which is to say, he reads statutes to determine the intention of the Legislature which wrote them, rather than reaching into his gut to arrive at the "right" policy result. If so, and if he applies the same elementary analysis to the Constitution, he will be everything a Supreme Court Justice should be, and everything the NJ Chief is not.