by Sandy Levinson

I cannot help notice the contrast between the New Jersey Supreme Court and the Baker-Hamilton commission on Iraq. Begin with the latter: On the most important and divisive issue currently before the American public, they make a conscious decision to wait until after the election to make their recommendations. This suggests a monumental lack of trust in what used to be called the democratic process. Apparently, We the People can't be trusted to get the recommendations at a time that they might actually be relevant in making choices as to whom to vote for. The Baker-Hamilton reticence is just another sign of the degradation of contemporary American politics. The New Jersey Supreme Court, on the other hand, decided that two weeks before the election was an absolutely appropriate time to release an opinion guaranteed to stir up the fading "base" of the Republican Party (as described in the lead story in today's New York Times). Presumably, this indicates that the judges consciously decided that it was absolutely irrelevant if their own decision on a hot-button issue had an altogether unwarranted impact on what may well be the most important mid-term election in decades. This speaks well to their independence from "political" thinking, but does it speak well for their common sense? Would it have violated any code of legal ethics to wait two weeks and thus avoid stiffing up political waters? In any event, this seems to contradict one standard political science model of judicial decisionmaking, for even if the votes simply reflect the judges' preferences instead of what the law "really means," (a standard political science view), it is almost unthinkable that the liberal New Jersey justices have any desire to aid the re-election efforts of Republicans who will resurrect fading campaigns by engaging in demagoguery on the issue of gay and lesbian marriage. If the New Jersey judges are simply "politicians in robes," they are damned poor politicians. So one might conclude that they are in fact persons of principle, who call them as they see them, with political consequences be damned. (For what it is worth, I'm delighted with the decision, but I do wish they had waited.)