By Taysen Van Itallie
Used to be that the judiciary in New Jersey was a co-equal branch of government. But if Gov. Chris Christie gets his way, that won’t be the case after Nov. 6.
There is a constitutional amendment on the ballot that would give the governor the ability, with help from the Legislature, to selectively target the judiciary for disproportionate pension and health care contributions. This will put power in his hands to punish the courts for decisions he dislikes and, even if he doesn’t act, subject the courts to the charge that their rulings are intended to curry his favor so that he stays his hand.
Christie sold his proposed amendment as a fix to a New Jersey Supreme Court ruling this summer exempting the judiciary, based on the state’s constitution, from increases in pension and health care contributions. But fixing that problem required only an amendment allowing contribution increases for judges equally with other state employees. That would have prevented selective treatment of judges by the other branches of government. The amendment before the voters on Nov. 6 contains no requirement that judges be treated equally.
Most state constitutions, like those of New Jersey and the United States, preclude any diminution of judges’ salaries once in office. But there are five states — Alaska, Hawaii, Kansas, Michigan and Pennsylvania — whose constitutions permit it for sitting judges, but only upon a critical condition: The reductions must apply equally to the other branches of government.
This is to preserve the co-equal status of the judicial branch and block selective treatment of judges by the executive and legislative branches. The language of Michigan’s constitution exemplifies the point. It precludes salary diminishment for sitting judges “except and only to the extent of a general salary reduction in all other branches of government.”
That essential condition is absent from the amendment language proposed by Christie and adopted by a heedless Legislature. Now, the governor and his legislative supporters can burden the courts without burdening themselves.
Christie has been effective in rallying public ire against the court for not sharing increased benefit costs with their fellow state workers. Voters see the constitutional amendment as the answer, but voters don’t see that the amendment goes way beyond the problem it supposedly fixes and gives the governor a stick to beat the court.
Lost in the uproar is the basic purpose of constitutional prohibitions on reducing judges’ salaries while in office. They stem from bitter colonial experience with the ability of royal governors to manipulate judges to rule for the king by controlling their salaries. The colonists understood that the power of the purse was the power to dictate the outcome. Those few states permitting salary reductions for sitting judges embrace this concern by allowing reductions only when they apply to all state employees.
The governor’s campaign against the court is well-documented. He was the first governor to fail to reappoint a Supreme Court justice — not for conduct unbecoming a judge, but because he disagreed with the judge’s ideology. He has challenged the decades-old tradition of party affiliation balance on the Supreme Court, and sought to jam through appointments lacking traditional Supreme Court-worthy credentials. He has demagogued decisions he dislikes and engaged in personal attacks against judges who displease him.
Is there any doubt how he would use the power of the purse against the court? The voters still have the opportunity to intervene.
Taysen Van Itallie is a lawyer in Princeton. He was director of New Jersey’s Division of Law in the Corzine administration and is a lecturer-in-law at Columbia Law School.