On September 15, 2004, at the War Memorial in Trenton, New Jersey Supreme Court Justice Roberto Rivera-Soto placed his hand on a bible and said,
“I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the United States and in this State, under the authority of the people So help me God.”
The event was only ceremonial—the justice had been formally sworn in two weeks earlier. But it represented an idea that is central to our system of government: the rule of law. We take it for granted that public officials and citizens will respect and follow the courts’ decisions, even when they disagree with them. But it wasn’t always this way.
In 1832, the Supreme Court ruled that Georgia could not enforce its laws in Indian territory. Georgia ignored the decision. So did then-President Andrew Jackson, who allegedly said, “John Marshall has made his ruling, now let him enforce it.” During the civil rights era, some Southern governors exhibited a similarly defiant attitude towards the courts and the law. But for a show of force from the Eisenhower administration, Brown v. Board of Education would likely have been ignored throughout much of the south.
These days, we expect that public officials will respect and follow the decisions of the court. We would find it outrageous if a public officeholder were to openly defy the courts, even if we disagreed with what the courts had done. When they do, they should expect to face punishment, as Alabama Supreme Court Justice Roy Moore found out when he decided that he, and not the federal courts, had the final say on whether or not he could erect a religious monument in the courthouse.
Moore, an avowed Christian conservative, had just won election to the bench when he commissioned a granite monument topped with two tablets containing the Ten Commandments. Moore had it installed in the central rotunda of the Alabama Supreme Court. The ACLU, SPLC, and other groups and individuals sued Moore in federal court seeking removal of the monument. A federal judge ruled that the monument violated the First Amendment’s Establishment Clause, and on appeal and the 11th Circuit Court of Appeals agreed. Moore declined to petition the Supreme Court for review, so the judge ordered him to take the monument down. When Moore refused, the other eight justices ordered it removed. Moore was subsequently removed from the court in a disciplinary proceeding. He remained defiant throughout the process, asserting his belief that God’s law trumped the decisions of federal and state courts.
The story of Roy Moore is a particularly sad one, because judges, more than anyone else, ought to appreciate the value of the rule of law. The courts, as Chief Justice Marshall in the 19th century and the court that decided Brown v. Board of Education in the 20th understood, depend largely on other branches of government to accept and enforce their decisions. When judges act to undermine the legitimacy of the judicial decisions, other government officials and the public at large are less likely to respect those decisions, and the rule of law suffers as a result.
By now, Blue Jersey readers are surely all aware of the recent spat at the New Jersey Supreme Court. To recap: Justice Roberto Rivera Soto, unhappy about the temporary assignment of Superior Court Judge Edwin Stern to serve on the state Supreme Court, filed what he called an “abstaining” opinion in a case about statutes of limitations in employment discrimination lawsuits. Rivera-Soto, relying heavily on a law review article and a white paper written for the Federalist Society, asserted in his opinion that the court was “unconstitutionally constituted” and declared that he would abstain from voting in cases as long as Judge Stern was sitting on the court.
Rivera-Soto’s conduct, by casting a shadow of illegitimacy on the court’s work, undermined the rule of law. Justice Rivera-Soto’s actions are completely unprecedented, at least in this country. To the best of my knowledge, no judge in any American jurisdiction has ever filed an “abstaining opinion”, refusing to rule on issues of substance or process and instead attacking the legitimacy of the court itself. By declaring that the court is acting “ultra vires” and announcing his refusal to vote on future cases, Rivera-Soto went beyond disagreement or dissent. His words and threatened acts seem to suggest that the court’s decisions in cases where Judge Stern participates are not merely wrong, but void. If Rivera-Soto can launch such an attack because he disagrees with a majority of the court’s interpretation of New Jersey law, why could a governor or mayor who is unhappy with a decision of the court not do likewise when he disagreed with the majority of the court? And if an executive may declare a court’s decision void, then why should he be obliged follow it at all?
Rivera-Soto, perhaps realizing his earlier approach unprecedented and extreme, has since decided to once again participate in the business of the court (although, he says, he reserves the right to abstain in cases where Judge Stern’s vote would be decisive. We will see how serious he is about this when he and Judge Stern vote on the same side in a 4-3 decision.) Rivera-Soto also announced earlier this month that he would not seek renomination to the court when his three year term expires this year. His departure will give a new justice the opportunity to join the court. Hopefully for the state and for the court, Rivera-Soto’s replacement will reflect more carefully on his oath, and on what it represents.