New Jersey Governor Chris Christie recently announced two Supreme Court nominees, heralding his appointment of an openly gay African-American and a Korean-American as “historic” for the diversity they would bring to the Supreme Court.  It seems an opportune moment for appellate practitioners to retrace the winding path that led us here, and to revisit, Henry v. Dept. of Human Services, 204 N.J. 320, 9 A.3d 882 (2010), an “historic” oddity that was built along the way. In May 2010, Governor Christie refused to re-nominate Associate Justice John Wallace, Jr.  Appalled at this overtly political break with tradition, the New Jersey Senate refused to consider the Governor’s chosen replacement until the date on which Justice Wallace would have reached mandatory retirement, March 2012, leaving the court with five Associate Justices.In September 2010, Chief Justice Rabner elevated Appellate Division Judge Stern to fill the empty seat, pursuant to New Jersey Constitution, Article VI, Section II, Paragraph 1, which states:   

The Supreme Court shall consist of a Chief Justice and six Associate Justices. Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the judge or judges of the Superior Court, senior in service, as provided by the rules of the Supreme Court, to serve temporarily in the Supreme Court.  Associate Justice Rivera-Soto, convinced that elevation was only “necessary,” and thus only permissible, when a quorum was lacking, promptly announced that he would not participate in decisions in which Judge Stern voted.  (He later decided to limit his protest to cases in which Judge Stern might cast the deciding vote).   

Rivera-Soto set down his reasons in a lengthy abstention in Henry, in which Judge Stern wrote the opinion for the majority (consisting of all of the Justices other than Rivera-Soto).  In a concurring opinion, Chief Justice Rabner, joined by three of the four Associate Justices who signed on to Judge Stern’s opinion, defended Judge Stern’s elevation.  Henry also produced an opinion dubitante by Associate Justice Hoens, in which she expressed her doubts about the Chief Justice’s view, but concluded “in the final analysis, the Constitution vests the power to make the temporary assignment in the Chief Justice rather than in the Court as a whole.”  This is a puzzling conclusion, because the constitution presumably vests in the entire court the power to say what the constitution means.  Unlike federal courts, the New Jersey Supreme Court is not limited to “cases and controversies,” nor is it hampered by “mootness” and similar doctrines.  As former Chief Justice Weintraub stated, “there is no constitutional mandate that a court may not go beyond what is necessary to decide a case at hand.”  Busik v. Levine, 63 N.J. 351, 363-364 (1973).  Historically, the court has done that, however, only when it deems an issue presented one that “should be resolved in the public interest.” Id.  It has otherwise generally refrained from “rendering advisory opinions or exercising its jurisdiction in the abstract.”  De Vesa v. Dorsey, 134 N.J. 420, 428 (N.J. 1993) (citing In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104, 539 A.2d 1197 (1988)). Henry was the rare case in which the issue decided in the concurrence—although arguably a matter of public interest—was not posed by the case before the court, but by the court itself.  The conflicting concurrence, abstention and opinion dubitante in Henry must appear to most practicing attorneys as an academic tempest in a teapot.  But the winds of this tempest could have been harsh if Rivera-Soto had not eventually relented and decided not to seek re-nomination.  The seat he thereby opened on the Court permitted the Governor’s original choice for Justice Wallace’s seat to take her place and peace was restored to the halls of the Hughes Justice Complex in Trenton.  A potential constitutional crisis had been averted.  

Lingering questions remain, however.  For example, is the concurrence in Henry, with its four votes, now binding precedent on the meaning of Article VI, Section II, Paragraph 1?  Indeed, what does it even mean to announce an opinion concerning the “discretion” that the Chief Justice may exercise under the state’s constitution when that question is not posed by the litigants then before the court?  The concurrence, abstention and opinion dubitante are all beside the point of Henry’s case, because they concern constitutionality of the Court, so is the concurrence only dicta?  While these are interesting topics of speculation, I, for one, hope that the meaning of Article VI’s elevation provision has been settled and that no future holding of the Supreme Court will be open to question on the basis of the Court’s composition.