Sunday, April 24, 2011

The rule of law ... in New Jersey

New Jersey's Republican Governor, Chris Christie, is threatening a state constitutional crisis. Over the past twenty-five years, in the Abbott decisions, the state Supreme Court has read the state constitution and laws to impose extensive obligations on New Jersey to finance equal educational opportunity for disadvantaged residents of the state. Facing the possibility that the state Supreme Court will rule, in a case just argued before it, that the state has violated those obligations, Christie told a radio interviewer that he might not obey the court's ruling: "That's an option," he said. "I'm not going to sit here and speculate. . . . There are a whole bunch of options in the contingency plan." Ginger Gibson, "If N.J. Supreme Court orders increased school aid, Gov. Christie says not complying is among 'options,'" (originally published in The Star-Ledger, April 22, 2011, at 1).

If Christie were actually to defy a court order, that would mark a constitutional crisis. While many people disobey many laws, and yet the legal order still stands, for a Governor to deliberately disobey an order of the highest court of a state really does undercut the idea of a rule of law. (Why is this a state rather than a federal matter? Because the constitutional guarantee of a "thorough and efficient system of free public schools" is an element of the New Jersey state constitution (Article VIII, Section 4(1)), not the federal constitution. As a result, it seems very unlikely that Christie could appeal an adverse decision by the state Supreme Court to US Supreme Court, which does not deal with state law issues.)

Threatening to disobey a court order isn't the same as disobeying one -- though it does bring the idea of disregarding the courts' decisions into the realm of legitimate public discourse, which is no small matter. Why would Christie do this? One possibility, of course, is that he actually is prepared to defy the courts. But I doubt that. The stakes just seem too high to me; Christie is an ex-United States Attorney, and I can't believe he's willing to say that the duty of obedience to court orders -- which undergirds every criminal and civil case -- actually can be disregarded. (Though I might be wrong.)

More likely, I think, Christie is engaged in one or two high-stakes games. The first is one to be played out just in New Jersey, and its name is "chicken." Christie is apparently trying to intimidate the court into finding some way to decide this case that does not bring it into absolute confrontation with the Governor. There may be ways (columnist Bob Braun of the Star-Ledger has suggested some) that the court could preserve what it might deem the essence of the Abbott decisions without directly flouting Christie's tax and spending policies -- and American constitutional adjudication has long recognized that the courts have no armies, and therefore may sometimes need to use prudence in their dealings with the other branches of government. Of course, the court can play chicken too -- it is one thing for it to issue an order contradicting some positions taken by the Governor, another for it to enforce it by such steps as contempt orders. This struggle may take quite a while to play out. And it may be further complicated by the fact that the state legislature must pass any spending legislation, and so, as Paul Mulshine, , another Star-Ledger columnist, points out, the question of complying with the court order isn't (at least isn't entirely) up to Christie; the legislature may become the immediate target of the court's pressure, while Christie gets to wait in the wings.

The other game is one of Presidential politics. What Christie's intentions are no one knows, but it's clear enough that Republican presidential candidates today must find a way to appeal to the Tea Party side of their party. Christie has made a national reputation for himself with YouTube videos recording his tough talk, and tough talk about liberal courts -- not necessarily linked to much concrete action -- may play well too. The problem for him is that the "tough talk" bar among Republican candidates seems to be set pretty high, and sooner or later may require confirmation in the form of action. How far Christie will want to take this particular appeal remains to be seen.

None of this is good for the ideal of the rule of law. But that ideal has survived a lot, and New Jersey is not in crisis yet.

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