Judicial Review

Today’s Star Ledger offers up a review of a new book on the Supreme Court of the United States. Alas, the language of the review fails to make it clear whether the opinions expressed are those of the author of the review or of the work under consideration. Perhaps both.

In the seminal case of Bush v. Gore, the review states, the SCOTUS "... demonstrated vanity, overconfidence, impatience, arrogance, and political partisanship..." The review’s author – now clearly speaking for himself – condemned the Court for its lack of "deference" (presumably to the determination of the execrable Florida Supreme Court) and "restraint", concluding that "... activism can be of any ideological stripe."

And, on that head, the author – erstwhile new Jersey Chief Justice James Zazzali – speaks with unquestioned authority, as he sat on, and presided over, the least restrained, least deferential, most activist, most impatient, most overconfident, most arrogant, vainest, and most politically partisan court in the Country. Indeed, certainly since the early 1970's, no Court in the nation has so consistently embarrassed folks who take the role of the judiciary seriously.

The litany of disgraceful cases knows almost no limit: Robinson v. Cahill, Right to Choose v. Byrne, Abbott, Mount Laurel, the Torricelli replacement case, death penalty cases, the legislative redistricting case, the gay marriage decision. To this list, one could easily add dozens of other, lower profile cases in which the Court put its best – that is to say, its left – judicial foot forward.

"Conservatives" – an infuriating term when employed to describe a judicial philosophy – concern themselves not with the results at which a Court arrives, but with whether that result comports with the text and history of the document it purports to construe. Hence, the problem with the above cited cases is not that they came out "wrong", in the sense of reaching an incorrect result, but that they lacked any underpinning in the text or history of the constitution or of the statutes at issue. Alas, our NJ Supreme Court – and all of the political left – cares not one whit about process, provided that the case comes out "right". One need merely consider the editorials of The New York Times on such subjects. A jurist who rules against civil rights plaintiffs, in favor of corporations, or against "workers" is, perforce, unqualified to serve or secure a promotion, never mind that the law actually dictated such a result.

CJE Zazzali’s criticism – or his repetition of the author’s criticism – of Bush v Gore is actually fairly well taken, as the SCOTUS clearly failed to distinguish itself. The Court probably should have deferred to the Florida political Powers That Be. It seemed fairly clear that – despite the absolutely outrageous and indefensible actions of the Florida Supreme Court (no doubt taking a cue from its NJ counterpart) – the Legislature would properly award Florida’s electoral votes to the winner of the election – George Bush – and the political process would solve the problem.

But for a NJ jurist to charge another court with arrogance constitutes the height of chutzpah. Perhaps no other court in history less deserves the honorific "judicial"; the NJ Supremes stand almost unchallenged as the worst state high court in the nation. (Florida certainly made a gambit for that title in 2000, and Nevada a few years later, but no Court in the nation is as consistently horrible as is that of NJ.)

Consider: the Court ignored absolutely clear statutory time limits, permitting the Democrats to replace a flawed candidate with someone else, on utterly specious grounds. It invented a "right" to massive urban school funding, even dictating that preschool be provided to 3 and 4 year olds. It crafted, out of whole cloth, a constitutional obligation to build low and moderate income housing. In the redistricting case, it declared a portion of the NJ Constitution unconstitutional – a truly cute trick. (The Appellate Division, on the same case, averred that the question was as simple as 1+1=2, demonstrating conclusively that the NJ Supremes not only illiterate, they’re innumerate as well) In the gay marriage case, Justice Zazzali himself dissented from the majority opinion, not on the grounds that 3000 years of tradition could not be unconstitutional, but on the assertion that the majority opinion wasn’t nutty enough.

In his final sentence, Zazzali opines that, as respects courts, "we will get what we deserve". What, pray tell, did the people of New Jersey do to so anger the gods as to be afflicted by the NJ Supremes these last 40 years? During that time, not one Justice – not a single one – ever consistently demonstrated that he/she got passing scores on the separation of powers section of the Constitution. Or, for that matter, in reading comprehension.

Conservatives don’t object to taking their policies before the electorate. The people get the policy they deserve: if they want a bloated government, outrageous taxes, questionable ethics, and public employee giveaways, racialism, unrestricted abortion, etc., (and, seemingly, they do) the Democrats stand ready to oblige them. But to have such idiotic policy imposed upon an unwilling populace based upon nothing more substantive than the whim of a few unelected, geriatric, ideologically predisposed lawyers is simply unconscionable. Indeed, it would be difficult to find a massive problem confronting the people of NJ which does not owe much, if not all, of its genesis to a judicial decree, one utterly lacking in constitutional basis.

CJ Zazzali avers that the judicial decision making process is "nuanced and complicated". Oh? In the Torricelli case, one lawyer – charged with arguing that the statute meant what it said – heard from numerous out-of-state lawyers: "you can’t lose"; and from hoards of NJ lawyers: "you can’t win." They knew the Court: it would not permit the law to stand between it and its preferred policy objective.

Similarly, I predicted, years before the gay marriage decision came out, that the Justices would impose it upon an unwilling populace. (Although BlueJersey types object to the perceived slight in the Court’s refusal to call this rose by its appropriate name, the effect is pretty much the same and they may yet succeed in getting the Court to pull that trigger) Why? Not because anything in the NJ Constitution even remotely suggests – let alone compels – such a result, but because the result comports with Politically Correct orthodoxy, and such is the only relevant concern to this Court. It cares not about the language of the Constitution; it simply asks "what’s ‘right’", and then acts accordingly, following the whims of its uniformly leftist membership.

Appellate judging is not especially nuanced or complicated. Not, necessarily, that it’s simple, but the process is easy to describe, if not always to follow: read the language of the relevant instrument and discern what the authors had in mind. Legitimate disputes may arise about the meaning of a text, but there can be no legitimate dispute about the appropriate judicial role. It is not, as one Justice said during confirmation hearings, "gap filling". It is not "doing the right thing" or arriving at a desirable result. It simply requires following the language of the instrument wherever it leads. If the Legislature or the people got it "wrong", it’s up to them – not the Court – to correct matters.

For an erstwhile co-conspirator in the NJ Supreme Court’s never ending struggle to subvert the rule of law to criticize another Court, let alone one which, increasingly, actually follows the law as it is, not as the Members might wish it to be, constitutes the height of arrogance.