BROKEN TRUST: IS A.G. RABNER A JUDICIAL ACTIVIST, PART 1.

The overarching question for New Jersey’s Senate Judiciary Committee Hearings considering Gov. Corzine’s appointment of A.G. Rabner to Chief Justice of the Supreme Court is whether A.G. Rabner is a “judicial activist” and if so what kind?

Justices or judges may act as judicial activists in two ways. First they may usurp authority. A judge or justice who exercises the power to decide that is not given to him or her by a lawful authority (the constitution or a legislature) overrides the authority of the U.S. or state constitution or commandeers the power of and acts as a legislator. Second, a justice may misuse lawfully given power by abusing his or her discretion when deciding a case(s). An abuse of discretion occurs by deciding a case or cases in a manner that is arbitrary, capricious, whimsical or somehow otherwise incorrect (an error in interpreting fact or law or both). In such instances, however, recourse is generally available from a higher court.

However, there is generally no meaningful recourse from the decision of a supreme court.
The U.S. Supreme Court is the final authority on questions concerning the U.S. Constitution. Thus, when the U.S. Supreme Court decides a U.S. Constitutional matter the only recourse is to amend the Constitution. Examples of this situation are (1) the use states and local governments of eminent domain to seize homes for office parks and (2) applying the commerce clause to regulate truck routes.

Most importantly, each state’s supreme court is the final authority on questions that only concern the application of a state’s constitution, i.e. it does not involve the U.S. Constitution. Here too, the only recourse from a state supreme court ruling on the state’s constitution is to change the state’s constitution. And finally, where there are no issues involving the U.S. Constitution, a state supreme court is also the final authority on statutory questions. An example in New Jersey is the finding the State’s Constitution requires homosexual couples have the same State rights as heterosexual couples.

Assemblyman Richard Merkt, R-Morris, has argued that the Supreme Court ruling showed "astonishing judicial contempt." Furthermore, "Republicans have introduced several measures to unravel the law, but no measures have advanced in the Democratically controlled Legislature, where its leaders have vowed not to consider proposals to take rights away from anyone."

At the opposite end of the spectrum Frank Askin, General Counsel of the American Civil Liberties Union [aclu] has said "We really do not know a whole lot about his commitment to social justice, which for years has been the hallmark of the New Jersey Supreme Court." Askin has more than a passing interest that includes the Ocean Grove Camp Meeting Association's policy banning same-sex civil unions at the boardwalk pavilion. Rabner has for the moment, declined comment.

If Senate Judiciary Chairman Adler and company exercise due diligence A.G. Rabner will be questioned about judicial ideology concerning the basis, methodology and rules of construction for such decision making in general and the Lewis case in particular. How he does or does not answer the question will be informative. After all, as a graduate of Princeton and Harvard and as Attorney General, one must expect A.G. Rabner to have an opinion on the law, even if he disagrees with it. And, as an assistant U.S. Attorney the A.G. knows his first duty is not to prosecute, but to search for the truth. Thus, it is only proper he be forthcoming on the issue at his confirmation hearing.