Partisanship Roils State Supreme Courts. Not in New Jersey

New Jersey’s Supreme Court is back in session, with Democrats again clinging to a one-seat majority.

Thanks to one of the most unusual fairness provisions for appointments in any state, a 4-3 partisan split among the justices is the norm. You’d never know it looking at their opinions.

In the last two years, the seven-member court has issued 88 decisions; all but 12 were unanimous, without a concurrence or dissent. Only twice did those divided opinions fall along political lines. The previous two years were much of the same.

Millions of Americans will cast ballots this fall for state Supreme Court justices, a once-staid and unnoticed down-ballot exercise that has become turbocharged amid culture wars and partisan vitriol.

Not in New Jersey. There, an unwritten tradition stretching back decades gives the governor authority to fill high-court vacancies but says neither party can hold more than four seats. The chief justice picks all other appeals judges, imposing partisan balance, and pairs his fellow justices—often Republican with Democrat—to vet cases for Supreme Court review. Oral arguments are collegial, not combative.

“When I talk to people around the country … they’re amazed at our system,” said New Jersey State Bar Association President William H. Mergner Jr.

The process isn’t always seamless. But from its appointments to the collaborative way the court reaches decisions, the state’s system could be a model for tamping down judicial volatility and excessive partisanship, litigators, law professors, and former justices say.

Retired New Jersey Supreme Court Justice Lee Solomon.

Photo courtesy of New Jersey Supreme Court

“The great risk of Democracy is that the majority party doesn’t respect the right of the other party to exist, and the goal seems to be eradication,” said Lee Solomon, a Republican who retired in August from the high court.

Unwritten Rules

Thirty-five minutes: That’s the time it took for a New Jersey Senate hearing to unanimously confirm Supreme Court Justice John J. Hoffman on Sept 30.

Hoffman, a legal conservative who served as attorney general under former Republican Gov. Chris Christie, and, more recently, corporate counsel for Rutgers University, received only positive comments and thanks from the Democrat-dominated body.

“There was a time when these confirmation hearings weren’t as smooth as this—we had some that went over a day,” Sen. President Nicholas P. Scutari joked before a Senate committee advanced Hoffman’s nomination. “I don’t miss those days, but they were interesting.”

Another state senator, Republican Kristin M. Corrado, praised Hoffman’s experience and dedication to family. “Your career is impeccable,” she said, “The humanity you bring is even more important.”

New Jersey has been reliably blue this century, particularly in the legislature. But it leans purple when it comes to the judiciary.

The state’s 1947 constitutional overhaul led to the fragile unwritten norms that court watchers say allowed for cross-party collaboration.

The governor nominates state trial and Supreme Court judges, both require Senate confirmation, and the chief justice picks appellate jurists from the trial court benches.

The Senate also has an unwritten courtesy rule, akin to the federal “blue slip” process in which presidents seek US senators’ approval of federal judicial nominees in their states. To appoint a state judge, New Jersey governors need the sign-off of every state senator whose district includes the county where the nominee lives—a list that could mean as many as five lawmakers.

“It is going to be unusual—maybe not unheard of, but extremely difficult—to put someone on the court that would be such an extreme it would upset these norms,” said Ronald Chen, a Rutgers Law School professor who has argued multiple times before the justices.

Those norms also dictate that governors renominate justices after seven years, regardless of their party, and that the Senate re-confirms them unless a justice has ethics scandals.

It has had its road bumps, though.

Between 2010 and 2013, Christie declined to renominate two justices, looking to shake up a bench that struck down his education budget. In turn, senate Democrats refused to confirm his picks, and held multi-day hearings in Trenton for others.

New Jersey State Supreme Court Chief Justice Stuart Rabner.

Photographer: Jeff Zelevansky/Getty Images

During the years of limbo, the court, down one member, authored a run of 3-3 decisions. Republican justices wrote opinions saying it was unlawful for Chief Justice Stuart Rabner to call up an appellate court judge to ensure the Supreme Court had seven.

“It changed the process from one where renomination was presumptive to one where it was political,” said Lowenstein Sandler partner Alexander Shalom, a former state Supreme Court clerk and frequent litigator before the justices.

The court snapped back to form, Shalom said, when Gov. Phil Murphy, the Democrat elected in 2017, took advice from Chen and others to renominate Republican Justice Anne Patterson, a Christie nominee and one of the court’s most conservative members.

Murphy’s five nominations since have added justices with track records of consensus-building, Mergner said. He pointed to Hoffman, who, as attorney general, worked with Democratic legislators on bail reform and police bodycam policy.

Chen noted the irony that state leaders from both parties have so often abided by what amount to “informal unwritten conventions” from the last century.

“I don’t think it’s something that can be easily bottled up and exported,” he said. “Enshrining these rules right now would be destined to fail because it would become too partisan.”

‘Era of Cynicism’

Few would dispute the partisanship that has crept into—if not overtaken—judicial elections in other states.

Next month, voters in nearly three dozen states will select hundreds of judges who will be asked to resolve fractious political questions about issues like abortion and gerrymandering.

“We have an era of cynicism, where courts are increasingly thought of as political institutions,” said Zachary Reger, a Washington attorney who has written on state supreme court partisanship and justice selection. “There’s something to be said for courts being a political institution, but still the least political branch.”

While scrutiny builds over US Supreme Court ethics and federal judicial nominations, special-interest groups are spending millions on state-level races—particularly where a flip of the court could lead to monumental reversals.

In the year since Janet Protasiewicz became the Democrats’ swing vote on the 4-3 Wisconsin Supreme Court, her liberal wing has reversed rulings on ballot drop boxes and gerrymandering lawsuits, and spurred a push to reverse an anti-union bill signed by former Gov. Scott Walker.

In North Carolina, GOP victories flipped its high court and opened the door for reversals in cases including partisan gerrymandering claims.

One flash point this fall will be Ohio, where voters can fill three seats on a bitterly divided Supreme Court. There, the 4-3 Republican majority last year upheld a bid by the GOP-led legislature for a special election—all to undermine an abortion-rights ballot initiative.

It’ll be just the second time where party labels will appear next to Supreme Court candidates names on the Ohio ballot.

The Trenton Way

The consensus-building in Trenton starts at the funnel that determines which cases the justices will hear.

The justices follow a “cert partners” system, where two justices—often one Democrat and one Republican—review a petition to weigh its pros and cons, and report their decision to the whole bench.

Rabner, a Democrat, doesn’t participate in the paired reviews, to give him more time for administrative duties, but votes with the rest on which cases to accept. He declined an interview request.

If the court grants review, the justices gather for a discussion after oral arguments where Rabner seeks consensus, Solomon said. If there’s dissent, the chief justice will go around the table again for a possible compromise. If things are contentious, Rabner will often schedule another discussion on the case.

The process continues even as opinions are written, said Alex R. Daniel, counsel for the business-aligned New Jersey Civil Justice Institute and frequent high court amicus.

As a clerk under Patterson, he saw majorities devolve into dissents and swings in the other direction once the justices started collaborating.

“That’s the beauty of the system that we’ve set up,” Daniel said.

One reason for fewer dissents could be that Murphy’s recent appointees—Fabiana Pierre-Louis, Douglas M. Fasciale, Rachel Wainer Apter and Michael Noriega—have only been on the court a few years, according to Barry T. Albin, a former justice and now a partner at Lowenstein Sandler.

They haven’t been exposed to cases that were as controversial that veterans Rabner and Patterson dealt with during politically tumultuous stretches, Albin said.

“There was probably more change in my 20 years than during any other time in the New Jersey Supreme Court, and that was the result of the political branches’ failure to agree,” said the Democrat who retired from the bench in 2022. “We will likely see long-term stability now with a seven-member court, with members who will be working together over a number of years.”

The process brings the justices closer together and encourages unanimity, Solomon said. That, in turn, leads to clearer direction from the bench, which most litigants seek.

“The US Supreme Court will come out with an opinion that’s 5-4, with all of the majority justices writing separate opinions and all of the minority justices writing different opinions—and the public is sitting there shaking their heads like, ‘What did they just do?’” said the former justice. “You need something to follow, even if you don’t agree with what they’re doing.”

Unpredictable

That roster of collegial consensus-builders, a lack of overt ideology—even the absence of an oral argument time limit—make the current New Jersey court hard to predict.

“If I could have all my arguments in front of a court like them—sign me up,” said Michael D. Meuti, chair of the Benesch appellate practice group.

Veteran litigators said they often provide the justices with fallback positions because they’re never certain which arguments will stick or how they’ll angle for a compromise.

“There have been times in the court’s past where I was doing a little more vote-counting in terms of thinking how the case was coming out. Now I don’t even try vote-counting,” said Stephen W. Kirsch, a criminal defense lawyer who has argued before the court for decades. “It makes you litigate your cases in a particular way—you’re less likely to go for a grand slam every time you come up to the plate.”

Some say the push for consensus also means the current court is less likely to take “big swings” that advocates might prefer on policy, settling instead on narrower grounds of agreement.

In one case this year, criminal defense groups pushed the justices to find New Jersey’s witness tampering statute unconstitutional. Instead, a unanimous court ruled that prosecutors may have unconstitutionally applied it.

The current court is seen as favorable to consumers and workers, but recent decisions challenge that narrative. One ruling favored a Catholic school sued for discrimination by a pregnant art teacher it fired; another rejected Aéropostale customers’ arguments that the clothier violated consumer protection laws by providing “discounts” unrelated to original prices.

Murphy’s term ends in 2026, and his five picks have moved the bench to the left, said Jeffrey S. Jacobson, a partner at Faegre Drinker Biddle & Reath who represents business defense interests.

Hoffman, whose voter registration is “unaffiliated,” replaced Solomon, a former Republican state legislator and prosecutor. Wainer Apter, a Democrat, was an ACLU attorney and helmed the state’s Division on Civil Rights. Noriega, also a Democrat, is a former public defender and immigration lawyer. Fasciale, a Republican, was a personal injury lawyer.

“That being said, the court has taken a very practical approach to these cases, has given business defendants a respectable hearing, and reached decisions that the business community so far has reason, if not to applaud, not consider to be awful,” Jacobson said.

Oral arguments, streamed online, tend to unfold like lengthy discussions instead of a contest where judges aggressively grill litigants and seek to undercut their colleagues.

In a September argument over fees for appointed lawyers in guardianship cases, Patterson cautioned one litigant to lower the temperature. “Let’s pause on the invectives about your adversary,” she said.

During marathon arguments this month over topics including shaken-baby syndrome evidence and corporate environmental cleanup waivers, the justices never lost their cool, occasionally laughed, and apologized when interrupting litigants. Three hours deep, Rabner would inch toward the end with his patented question: “Is there anything else you’d like to say?”

Meuti represented Aéropostale in one of the rare 4-3 cases in New Jersey this year.

But even that high court argument wasn’t the combative kind he’s seen in other states, “where it felt like judges were trying to eviscerate the argument on both sides,” he said. “This was a collective group of justices trying to solve a problem, get the right answer.”