The oral argument in the Supreme Court of the United States today about the Affordable Care Act, a/k/a “Obamacare,” has drawn so much attention that it has overshadowed the nearly two-hour oral argument, which also began at 10 A.M. today, in the Supreme Court of New Jersey as to the constitutionality of a law purporting to increase the amount that sitting Superior Court judges and Supreme Court Justices must pay toward their pensions and health care. It is a classic clash between, or among, the different branches of state government. Plaintiff DePascale, a tenured Superior Court judge, prevailed before the Law Division in his argument that the law was unconstitutional because it altered judges’ “salary” in violation of Article VI of the New Jersey Constitution. The Supreme Court granted direct certification of the matter, allowing it to bypass the Appellate Division and proceed more quickly to an ultimate decision by the Supreme Court.
Since (unlike the Supreme Court of the United States) our Supreme Court makes its oral arguments available via live webcam, anyone who wished was able to view the argument in real time. Chief Justice Rabner recused himself, and there is one vacancy on the Court, so five jurists (Justices Lavecchia, Albin, Hoens and Patterson, and Judge Wefing) heard this case.
The State argued first. Justices Lavecchia and Albin questioned the State’s positions, with Justice Albin taking a particularly outspoken posture. For example, he got the Assistant Attorney General to concede that the Legislature could not reduce a judge’s pay by 10%, but then grilled him as to whether the Legislature could achieve “indirectly” the same result– reducing take-home pay by 10%– by increasing the deductions for pensions and health care. The State asserted that pensions and health care are not “salary.” Instead, they are “compensation,” and therefore contributions for those things can be altered. The State also emphasized that judicial independence, which was the reason for the constitutional limitation on altering judges’ “salary,” is not threatened by the law at issue, since judges will eventually get back, in the form of pension, the amounts withheld for pension, and since the law applies to other public employees as well and does not discriminate against judges.
Justice Patterson, on the other hand, seemed more sympathetic to the State’s arguments. At several points, she asked questions that appeared to allow the Assistant Attorney General to state his position in favorable terms. There were times when Justices Patterson and Albin seemed to be debating with each other during the State’s argument.
Over fifty minutes later, it was time for Judge DePascale’s side to be heard. Justices Patterson and Hoens immediately posed an obvious question: since the word “salary” was used here, not “compensation” (as in the comparable federal constitutional provision) or “salary and emoluments” (as in the Delaware Constitution), why shouldn’t standard principles of statutory interpretation dictate that “salary” means “salary” and not compensation? Counsel for Judge DePascale argued that the two terms were essentially interchangeable, and that the framers’ overarching purpose of ensuring judicial independence made the particular word used less important.
When Justice Patterson began to probe the effect of Judge DePascale’s argument for future increases in health care or pension costs, Justice Albin intervened and seemed to offer Judge DePascale’s counsel a helping hand, just as Justice Patterson seemed to do when the State was arguing. It seems likely that, at least as of today, there is division on the Court as to the proper result in this case. Judge Wefing, the fifth member of the Court, asked some questions but did not seem to be particularly outspoken in any particular direction.
After forty minutes, the Court turned to the amicus curiae, the New Jersey State Bar Association. The NJSBA, represented at oral argument by its current President, emphasized the importance of ensuring judicial independence. Still, NJSBA recognized that judges are not fully independent, since they are dependent on the other branches for funding and in other ways. “The public must have confidence that the judge before whom they appear is free from retaliation or other political influence” from the other branches. Moreover, there is a need to attract quality people to serve as judges, a point that Judge DePascale also made. The Court had no questions of the NJSBA.
The State’s rebuttal was, to an extent, more of the same. Justices Lavecchia and Albin posed some aggressive questions, while Justice Patterson threw out what appeared to be a “softball,” asking what level of deference the Court should give to the Legislature here. Unsurprisingly, the Assistant Attorney General urged that significant deference be given.
There was much more, including discussion of Supreme Court of the United States caselaw, the Federalist Papers, and the proceedings that led to the 1947 Constitution. Both counsel argued at a high level. All members of the Court were fully engaged. At this point, the case may be a toss-up.