Another textbook example of an activist court has occurred in New Jersey. DePascale v. New Jersey is clearly void of any constitutional substance. After review of 2011 legislation passed by the New Jersey legislature, the New Jersey Supreme Court has ruled that it is unconstitutional to make Supreme Court and Superior Court justices contribute more towards their benefits like other public employees.
The hike in contributions to pensions and benefits was deemed unconstitutional by the court because the New Jersey Constitution mandates that “salaries of judges must not be diminished by the legislature during their term.” This was included in New Jersey’s constitution during its drafting to ensure that the legislature would not punish the judiciary for decisions that lawmakers didn’t agree with. However, that reasoning does not apply here, as that was clearly not the intent of the law. The 2011 law was intended to make all state employees, not just judges, contribute more for their pensions. If the court made a constructionist decision, they would have upheld the law. Under the raise in contributions, the salary of the judges is not being diminished, or altered at all. The only change is that the amount they contribute to their pensions is being raised slightly. The salary remains the same. Therefore, they overlooked the plain and simple language in the constitution, and included pensions and benefits (which didn’t exist during the drafting of the constitution) into the term “Salary.” The activist court decided 3-2 that the increase in pension contributions was unconstitutional. What a conflict of interest! Not only were the judges digging deeper and redefining the term “salary,” but I’m sure that the fact that their own pensions were on the line affected their decision.
The court was lucky to hear this case with a shorthanded panel of justices. Due to the Democrats in the New Jersey Senate stonewalling Governor Chris Christie’s Supreme Court nominees, there are two vacancies on the bench. Also, one justice is only serving a temporary term as a “fill in.” Given the fact that only four regular justices were able to take part in this ruling, it is not a legitimate conclusion.
Luckily, both Republicans and Democrats in the New Jersey legislature disagree with the conclusion the activist court came to. A constitutional amendment that makes a distinction between salary and pensions passed the Senate and General Assembly overwhelmingly this week, and will be put on the ballot for voters to decide on in November.
The purpose of the New Jersey’s constitution was to be interpreted as is, not to be nit picked and loophole. The liberal court was trying to avoid pension contribution raises, but now light has been shed on their corrupt decision. The voters will decide in November, and I believe they will conclude that judges are not exempt from paying their “fair share.”
Colin Snell | Burlington College | @SnellColin