In 1986, Justice William Brennan delivered an address in which he called for “state courts to step into the breach” left by what he discerned as a federal contraction of rights and remedies. In other words, those who wish to remake American society along radically egalitarian lines could no longer count on a sympathetic federal judiciary; the revolution would now have to be continued in state tribunals using state constitutions.
Brennan must have had in mind the court from which he was elevated to the U.S. Supreme Court in 1956â€”that is, the New Jersey Supreme Court. No state court has been more aggressive at social engineering than the New Jersey Supreme Court under Chief Justice Robert Wilentz. The decision last term in New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corporation demonstrates why the doctrine of judicial restraint is as essential in state as in federal courts for the preservation of a republican polity.
In this case, the court held, in a majority opinion written by Wilentz, that large, privately owned shopping malls must permit leafletting by issue-oriented groups. The decision has all the hallmarks of a Wilentz opinion: at 72 pages, it is far too long (a friend of mine has a maxim: the more they write, the more they have to hide), the prose is ponderous, and the reasoning specious. Wilentz based this “right” on the freespeech protections found in the New Jersey Constitution. (This source is all he could use; the federal Constitution contains no right to hand out political propaganda in a shopping mall.)
A central preoccupation of Wilentz’s jurisprudence is the tension between affluent (white) suburbs and impoverished (black) cities. This sociological theme is conspicuous in New Jersey Coalition, where Wilentz relies on the notion that the suburban shopping mall has replaced the downtown business district. But this analysis is both superficial and flawed, as Justice Marie Garibaldi’s dissent trenchantly pointed out:
The inescapable mission of shopping malls is not to be the successor to downtown business districts; rather, it is to provide a comfortable and conducive atmosphere for shopping, a mission into which mall owners have invested large sums and energy. . . .
Common sense also dictates that privately-owned-and-operated shopping malls are not the functional equivalent of downtown business districts. . . . Shopping malls do not have housing, town halls, libraries, houses of worship, hospitals, or schools. Nor do they contain the small store, such as the corner grocer, that used to serve as the forum for exchange of ideas.
The New Jersey Supreme Court has applied free-speech protections to speech on private property before, so in one sense New Jersey Coalition is nothing but a slide farther down the slippery slope. But what this case also represents is a startling contempt for private property, which also happens to enjoy rather substantial protection under the law, notwithstanding the New York Times‘s cavalier reference to a shopping mall as “nominally private property.” As the dissent observed, “Under the majority’s theory, private property becomes municipal land and private-property owners become the government.”
Of course, it would be a serious misapprehension to assume that this case reflects a principled devotion to free speech. On the contrary, rarely has a court been more vigilant than the Wilentz court in scrutinizing the political correctness of speech before adjudicating the issue of whether it can be allowed. Recently, for instance, a New Jersey Supreme Court decision was summarily vacated by the U.S. Supreme Court for its unconstitutional overreaching in placing restrictions on law-abiding pro-life picketers. One wonders how the leafletting case would have come out had the leaflets conveyed a pro-life message.
The New Jersey Coalition case illustrates how subversive a results-driven jurist is with respect to the real policy preferences of New Jersey residents. Wilentz has shown again and again throughout his tenure that his vision of the good society must prevail, with or without constitutional sanction. Whether in circumscribing zoning practices to compel the construction of low-income housing, restructuring school funding to destroy local control and to waste more money on schools that resemble war zones, or effectively nullifying the death penalty by creating labyrinthine standards for its application, Wilentz has shown an utter disregard for the text and history of the state constitution and supplanted that document with his own leftist (and race-obsessed) views.
To be sure, Wilentz inherited a court with well-developed activist inclinations. It was in New Jersey, after all, that a “right to die” for Karen Ann Quinlan was fashioned out of the misbegotten federal privacy cases. Still, Wilentz has pushed well beyond anything that preceded him. Indeed, given his role in promulgating policy from the bench, it is certainly no overstatement to say that for the past 15 years or so, Wilentz has easily been the most powerful politician in the state.
Fortunately, all New Jersey judges face mandatory retirement at age 70, and Wilentz must go in 1997. Governor Christine Whitman will appoint his successor, and she should not use the opportunity to show her sensitivity to clamorous minorities or women’s groups. Rather, she should select a chief justice who will construe the state constitution reasonably and not treat it as a Rorschach test into which a revolutionary agenda can be read. New Jersey has had enough of what Judge Learned Hand once called Platonic Guardians.