Senator Weinberg's Question

Some time ago, SenatorWeinberg, patting herself on the back for keeping Phil Kwon and Bruce Harris off the SCONJ, wrote:

"We turned down the two inappropriate Supreme Court nominees put forth by the Governor. What do you think would have happened to the Affordable Housing (COAH) case if either of them had been on the court?"

Perhaps unsurprisingly, this represents a fundamental misunderstanding of what judges do. But, then again, leftists don’t see courts as adjudicative bodies; they see them as instruments to impose policy, as politicians in black robes. Give her credit: Senator Weinberg couldn’t have been more forthright, that she wants politicians – well, her kind of politicians – on the Court:

"The balance on the Supreme Court should be important to all of us. With issues like school funding, women's health, affordable housing, marriage equality, and tax policy, that is particularly important to our progressive community."

One doesn’t even need to read between the lines: "progressive" judges will arrive at the "correct" result, whereas conservatives might permit pesky details, like the text and history of the document to influence their decisions.

Unfortunately, vis a vis progressives, the good Senator is correct: they DON’T permit trivialities like the appropriate role of a judge to stand between them and effecting "desirable" social policy. Consider Obamacare. Much discussion occurred about whether one of the so-called conservative judges might vote to uphold it, but there was never even so much as the slightest doubt that the four political liberals would march in lockstep. And they did. There is nothing so predictable as Justice Breyer’s vote: find out what progressive ideology considers a good result, and that’s the way he’ll come out.

Just so, Senator Weinberg clearly wants justices who will arrive at the "right" result on cases when she believes passionately in the policy.

But, query: do we REALLY want judges involved overmuch in "tax policy" or "women’s health"? Should judges be making "affordable housing" policy or taking it upon themselves to redefine marriage? Once one concedes that judges possess power in such areas, one surrenders the right to bellyache if said judges arrive at conclusions to which one objects. Endowing judges with the authority to impose their whim upon the citizenry presents the severe risk that they will arrive at a policy which diverges from one’s own.

Which, perhaps, explains Senator Weinberg’s deep concern about the possibility that someone who disagrees with her politically will be confirmed. Perhaps she fails to understand that political conservatives view the judicial role very differently from progressives. An example, from her own writing, above.

The decisions in Mt Laurel and its progeny are problematic in the extreme. Our NJ Constitution provides:

"The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature."

From this pithy language, the Court discovered (a) that to be valid, a zoning Ordinance must be consistent with the public welfare and (b) it falls to the judiciary to determine what policy advances the public welfare.

Note the language of the Constitution, entrusting zoning matters to the Legislature. The Court never found that any zoning ordinance violated the Municipal Land Use Law. Instead, it engrafted onto that language an affirmative duty to provide for low income housing, and arrogated to itself the right to determine the precise scope of a municipality’s obligation. In short, Mt. Laurel represented a huge power grab, in which the judiciary simply asserted that it, and not the Legislature, enjoyed the right to make policy calls in this area.

Clearly, Senator Weinberg LIKES that decision; she apparently doesn’t mind an assault on legislative prerogative in the service of arriving at "progressive" results. The "how" doesn’t matter so much as the policy itself.

But the question Senator Weinberg posed is different: how would a judge who actually pays attention to the Constitution, and cares about the judicial role, have voted on Governor Christie’s attempt to inter COAH? Framed differently, faced with a gubernatorial assault on legislative prerogative, rather than one from the judiciary, Senator Weinberg suddenly advocates for the dignity and power of the Legislature. It’s hard to escape the conclusion that she simply doesn’t care about process, provided she likes the result.

Let’s get personal: ridding the state of COAH and the entire edifice of "affordable housing" guarantees strikes this legislator as wonderful policy. And, as above, the entire Mt. Laurel doctrine rests upon absurdly shaky constitutional footing. But if the LEGISLATURE adopts a policy, included in a statute, which establishes an agency or imposes a policy upon municipalities, that presents a very different question. While the judiciary lacks the legitimate authority to impose its whim upon the populace, that’s why they pay legislators the big bucks.

Although it apparently comes as a surprise to progressives, political conservatives, on the judiciary, are quite capable of doing something progressives apparently find incomprehensible: arriving at a decision with which they profoundly, personally, disagree, because the constitution compels it. (John Roberts, call your office)

So, in answer to Senator Weinberg’s (rhetorical) question, had either of the two nominees to the SCONJ – to the extent that either was a conservative – been confirmed and heard the COAH case, they would have arrived at the result the statute and the constitution compelled, not the policy determination they might have personally preferred. That’s how judges are supposed to act.