Scorecard: High Courts 2, Governors & Legislatures 0


May was a good month for constitutional democracy. The U.S. and New Jersey Supreme Courts separately issued controversial rulings in two longstanding disputes involving state government.

Both cases illustrate how democracies with independent judiciaries work to ensure that the constitutional mandates are met. Despite accusations of judicial activism and complaints about unelected judges “legislating from the bench,” it is clear that the executive and legislative branches in both cases had failed over many years to meet constitutional mandates. In such instances, it ultimately falls to the courts to resolve the dispute and enforce the Constitution.

The U.S. Supreme Court case, Brown v. Plata, was about California's prisons, which are—and have been for years—massively overcrowded. (). In its ruling on May 23, 2011, the Court upheld the findings of a three-judge appellate panel which ruled that the conditions in California's prisons violated the Eighth Amendment prohibition on cruel and unusual punishment. The Court ordered the state to reduce its prison population by 30,000 inmates, to a population of approximately 110,000. Even with that drastic a reduction, the prison system will still be at 137.5% of rated capacity.

The Court did not prescribe how the population reductions were to be accomplished and gave the state two years to reach the reduced population level.

The original case in this ruling was filed in 1990, a second case in 2001. Multiple efforts by the federal courts over more than two decades had failed to motivate the state sufficiently to resolve the problem. In fact, during that period, California's legislature and governors have passed numerous additional laws, such as the notorious “three strikes law” which have further exacerbated the prison crowding problem.

Even the state's own actions suggest the depth of the crisis. In 2006, then Gov. Arnold Schwarzenegger declared a state of emergency in the state's prisons, due to overcrowding. Yet the population remained unconstitutionally high. As Adam Liptak wrote in the New York Times, “The majority seemed persuaded that the passage of time required the courts to act”.

The New Jersey Supreme Court case, Abbott v. Burke, involved the level of state funding for public schools. This is an even longer standing case than California's prison crowding, dating back to a predecessor case, Robinson v. Cahill (Robinson v. Cahill, 62 N.J. 473), which was first decided in 1973.

The constitutional issue here is the level of funding required to meet the New Jersey Constitution's requirement that: “The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” (N.J. Constitution, Article VIII, § IV, ¶ 1)

The state's large urban school districts typically rank much lower than suburban districts on measures of educational achievement, and this has been attributed to lower spending levels which reflect the urban districts' more impoverished property tax capacity. For more than three decades, legislatures and governors have been providing state funding to schools across the state, but have failed to address the core problem of under-performing urban schools. While one may argue that the problem is more than just funding levels, the focus has been on leveling the playing field through financial aid as a first and fundamental step to improved educational performance and compliance with the constitutional mandate.

The NJ Supreme Court's decision mandated that the state provide an additional $500 million in state aid to the urban districts. In a state with a $10 billion budget gap, this ruling has caused consternation on both sides of the issue. The plaintiffs and their supporters seek additional funding (the Court's ruling restored half of the state aid to education funds cut from the state budget by Gov. Chris Christie) while opponents decried activist judges and wonder where the money will be found.

Despite some indication in overheated rhetoric by Christie that he might defy the Court if its ruling didn't go his way, it appears that he will comply. In reading his statement following the Court's ruling, he sounded about as sincere as a recalcitrant teenager reading a letter of apology written for him by his parents to make amends for some misdeed. He said: “However, as Governor of New Jersey, I realize that regardless of my personal beliefs, I must comply with the New Jersey Constitution as interpreted by the New Jersey Supreme Court.”

That statement is critical. It is the governor's sworn duty to uphold the state's Constitution?his personal beliefs and opinions notwithstanding. Christie has made no secret of his displeasure with the New Jersey Supreme Court's ruling, attacking a sitting justice for a question asked during oral arguments before the court and overtly politicizing the judicial appointments process, which (I am sure this will surprise many outside of New Jersey) had heretofore been remarkably free of partisan politics. But he has now gone on record concerning his responsibilities as governor when the Supreme Court issues a decision.

Elected officials at all levels across the country are quick to decry what they consider “activist judges.” In reality, courts are responding to issues brought before them by individual citizens and groups. They are carrying out their responsibility as set forth by law. When the legislative and executive branches fail to act to meet their constitutional responsibilities, it is to the courts that the citizens must turn for relief. Absent an independent and effective judiciary, a co-equal partner in our constitutional democracy, where would the citizens turn?

Both the California prisons and the New Jersey schools present difficult, complex public policy challenges to our elected officials. But I think it is fair to say, that after the decades of waiting, elected officials in those states should have been able to figure out a way to resolve these issues. Without the courts to hold their feet to the fire, the elected officials will continue their default strategy of kicking the can down the road into the next guy's term.

If elected officials don't like the courts getting involved in their business and telling them what to do, the solution is simple. Find a way to resolve these disputes that satisfies the mandates of the state and federal constitutions and that meets the wishes of the electorate. This will in all likelihood require compromise and negotiation, two things that appear to be in short supply in the political arena these days.

I am certain that courts at all levels across the country would prefer that these thorny public policy disputes could be worked out without having the courts impose wide-ranging and costly remedies. But resolution of such disputes is the role prescribed for the courts in our constitutional democracy, a role that every judge swears an oath to uphold. These cases provide two timely and poignant examples of courts and judges fulfilling their constitutional responsibilities.

William D. Burrell, an independent corrections management consultant specializing in community corrections and evidence-based practices, is a regular blogger for The Crime Report. A former chief of adult probation services for the New Jersey state court system, he currently serves as chair of the Editorial Committee for Perspectives, the journal of the American Probation and Parole Association (APPA), and serves on APPA's Board of Directors. He welcomes reader comments.

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