The Court That Broke Jersey: The Judiciary Has Forced Taxpayers to Finance Unprecedented Educational and Housing Regimes
Squelching rumors this past fall of a presidential run, New Jersey governor Chris Christie observed that he had lots more to do to fix a “broken” state. He wasn’t kidding: though already the nation’s most heavily taxed state, New Jersey can balance its budget only by ignoring billions of dollars in employee pension liabilities and by slashing aid to struggling local governments. Christie has pushed through reforms that cut spending and cap property-tax increases. But he has only begun to grapple with an institution that bears much of the responsibility for the state’s fiscal woes: the New Jersey Supreme Court.
For half a century now, New Jersey has been home to the most activist state appellate court in America. Lauded by proponents of “living” constitutions who urge courts to make policy instead of interpret the law as written, the New Jersey Supreme Court has profoundly transformed the Garden State by seizing control of school funding, hijacking zoning powers from towns and cities to increase subsidized housing, and nullifying taxpayer protections in the state constitution. Its undemocratic actions have blown apart the state’s finances and led to ill-conceived and ineffective policies. If you want to understand what rule by liberal judges looks like on the state level, you need only look at New Jersey, which is teetering on bankruptcy though it remains one of America’s wealthiest states.
In January, Christie nominated two new members to the court, appointments that have the capacity to reshape the seven-member panel. But taming the court won’t be easy, even for the pugnacious Christie, whose initial efforts to reform it met ferocious resistance. “I don’t think the supreme court has any business being involved in setting the budget of the state government,” Christie complained last year. Yet it is involved, extensively—and that must change if Jersey taxpayers are ever to find relief.
New Jersey’s supreme court, charged with hearing cases brought to it from lower judicial levels, is the product of the state’s 1947 constitution, which replaced an unwieldy 16-member Court of Errors and Appeals with today’s seven-member body, appointed by the governor and confirmed by the state senate. A dean of New York University’s law school, Arthur Vanderbilt, served as the new court’s first chief justice. Vanderbilt is best remembered today for persuading President Dwight Eisenhower to appoint William Brennan, at the time also a Jersey justice, to the U.S. Supreme Court, whose liberal activist wing he led for more than three decades.
As chief justice for nine years, Vanderbilt helped forge the New Jersey Supreme Court’s expansive understanding of its role. For instance, he wrote the majority opinion in Winberry v. Salisbury, a decision that gave the court itself, not the legislature, the power to make rules for the state judiciary. That ruling set New Jersey’s judiciary apart from the court systems in most other states—as well as from the federal judiciary, which ultimately derives its authority from Congress. Some critics have even argued that Winberry violates the U.S. Constitution’s guarantee that every state must have a republican form of government. “Under the doctrine ofWinberry v. Salisbury,” wrote New Jersey lawyer Anthony Kearns in a 1955 ABA Journal article, “we can only conclude that laws of practice and procedure are exclusively in the hands of men who are not elected.”
Since Winberry, the court has usurped the roles of the governor and the state legislature in many other areas, relying on questionable readings of the New Jersey Constitution to pursue its own views of justice. But nowhere has the court’s ambition had a bigger or more disastrous impact than in education policy, particularly with a series of decisions, collectively known as Abbott v. Burke, that have massively extended judicial control over the Jersey schools.