Welcome State Bar of Michigan Blog readers!
With his recent entrance into the 2012 presidential campaign, Texas Governor Rick Perry’s views on the U.S. Supreme Court have come into focus. One of his ideas, allowing Congress to override the Supreme Court with a two-thirds vote, in order to ensure “accountability.”
Two states in particular, Montana and New Jersey, have been considering such proposals with respect to their own state supreme courts in the last several years.
Today: a look at New Jersey. Tomorrow: Montana.
New Jersey
New Jersey’s efforts stem from the Abbott decisions involving spending on education under the state constitution’s guarantee that “[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” (N.J. Const. art. VIII, § 4, P 1.)
There have been two “versions” of the two-thirds override amendment. One was introduced a single time (ACR 187 of 2003) and specifically amended the aforementioned provision of the state constitution only (additions underlined)
a. The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years. Maintenance and support shall be provided through the enactment, from time to time, of laws prescribing the components of a thorough and efficient system of free public schools and the funding of a system of free public schools in the manner and to the extent the Legislature determines to be appropriate. No court shall issue any decision, whether under this section or otherwise, which shall have the effect of compelling the State or any of its subdivisions to expend additional funds on the support of public schools, or of restraining the expenditure thereof, without the express consent of the Legislature.
b. The Legislature may review the decision of any court on the provision of a thorough and efficient system of free public schools to determine if the decision violates the provisions of this section or is otherwise inconsistent with the intent of the Legislature and may invalidate the decision, in whole or in part, by a vote of a two-thirds majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation.
This limited version was referred to the Assembly Judiciary Committee, received no hearings, and died at the end of that session.
The second, and more resilient, version was first introduced as ACR 137 of 2000 and reintroduced as ACR 190 (2003), SCR 117 (2003), ACR 66 (2004), SCR 25 (2004) , ACR 88 (2006), SCR 19 (2006), ACR 118 (2008) , and SCR 63 (2008). It is currently pending in only the Assembly as ACR 12 (2010).
This version would add Section IX in the state constitution’s Judiciary Article (Article VI).
(a) As the people possess the exclusive authority to ordain or amend constitutions, all courts shall interpret this Constitution in a manner consistent with the intention of the people when ordaining or amending the same. Any court which declares an act of government contrary to the provisions of this Constitution shall do so in writing, setting forth in specific detail the section violated and the history of such provision which supports the decision. No court shall expand a constitution provision beyond, nor constrict a constitutional provision below, the scope actually intended by the people. As the power of the purse is solely that of the Legislature, no court shall issue any decision, whether under this Constitution or otherwise, which shall have the effect of compelling the State, or any of its subdivisions, to expend any money, or restraining the expenditure thereof, without the express consent of the Legislature. As the purpose of a Constitution is to establish and restrain government, the Judiciary shall not interpret this document so as to apply its provisions against private parties.
(b) The Legislature may review any decision to determine if the decision violates the provisions of subsection a. of this Constitutional Amendment or is otherwise inconsistent with the intent of the Legislature. The Legislature may invalidate the decision, in whole or in part, by a vote of a two thirds majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation.
Not a single iteration of this version has gotten to so much as a committee hearing.
