Ruling against the Constitution should be impeachable

The United States Constitution

One of the oldest dilemmas known to law and justice is "Who guards the guards themselves?" Supreme Courts are supposed to guard the Constitutions of their respective jurisdictions. When they cease to play that role, and distort those Constitutions beyond any rational estimate, that ought to be an impeachable offense.

Paul Mulshine, columnist for The Star-Ledger (Newark), brought that dilemma into sharp focus last night with this column, a reprise of a column he wrote on this very subject four years ago. At issue was the Court's ruing in Lewis v. Harris, in which the Court recognized the "right" of same-sex pairs to at least some of the legal benefits and distinctions of marriage. The Court concluded with this order:

To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision.

Then-Assemblyman Rick Merkt found that order an outrage and released a statement to the press saying that the Supreme Court had committed a wholesale violation of the separation-of-powers principle. Since when, he asked in so many words, does a Supreme Court order a legislature to draft and pass a law? Merkt concluded by saying that all seven Justices who joined in whole or in part in that decision deserved removal from office on impeachment for, and conviction of, the "high misdemeanor" of disrespect for the Constitution.

On the day following that press release, a never-identified employee of the Court visited the staff offices of the Republican caucus in the Assembly "to express irritation" with Merkt, and even to say--allegedly as a joke--that Merkt might be liable for prosecution for threatening a judge. That, of course, made Merkt furious, and he promptly submitted articles of impeachment.

Predictably, those bills did not succeed, for two reasons:

1. Too many members of the Assembly wanted the very result that the Court produced in Lewis.
2. Not enough members of the Assembly believed that a dispute on the meaning of the Constitution was or ought to be an impeachable offense.

The problem, in New Jersey, in every other State, and in the whole United States for that matter, is where this leaves each State's respective Constitution, and the federal Constitution. Quite simply, any given Constitution means exactly what its corresponding Supreme Court says it means, any time that Court says it.

To set the record straight, Article I, Paragraph 1 of the New Jersey Constitution reads:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

That says nothing about the right to be married. Thus the Court in Lewis engaged in the wholesale amendment of the Constitution. In light of that, Merkt's outrage is understandable.

Nor is this the only example, nor even the worst. Lewis does a certain hard-to-define harm to the institution of marriage, and to certain people's freedom of association. But other New Jersey Supreme Court precedents, having names like Robinson and Abbott and Mount Laurel, have brought even worse harm, by forcing the State to bear certain expenses that the State can no longer afford.

If anything, the attitude of the Court as an instittution has gotten even more arrogant since then. Instead of an anonymous clerk threatening an assemblyman with prosecution, the State has seen its Chief Justice publicly upbraid Governor Chris Christie for his exercise of his power, clearly delineated in the State Constitution, not to appoint a Supreme Court Justice after his initial seven-year term if, in the opinion of the governor, someone else would be better suited to the position. One would think, from Stuart Rabner's press release, that the governor had called for the impeachment of Justice John E. Wallace, rather than his non-reappointment. But maybe an article of impeachment, after any other decision as egregious and negativey consequential as Robinson or Abbott, would go far to restore a balance of power that is now sorely lacking.

This article is part of the New Jersey Supreme Court series.

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