Statement of NJSBA President Wayne J. Positan on criticism of the NJ Supreme Court for its decision in Lewis v. Harris
NEW BRUNSWICK, NJ—It seems a sign of the times that when judges make an unpopular decision, they are labeled activist judges and criticized as rewriting the Constitution. In the last week, attacks have been leveled by politicians and pundits in the local and national media after the New Jersey Supreme Court issued its opinion in Lewis v. Harris, a case brought by several same-sex couples challenging the constitutionality of New Jersey’s marital laws. The final resolution of this matter was left to the Legislature or, as the Court put it, to the “democratic process.”
Nevertheless, some critics have gone so far as to call for the impeachment of members of the Court. The reason seems to be the Court’s recognition of significant constitutional infirmities in existing law which it directed the Legislature to address.
In our opinion, such attacks are dangerous and threaten the independence of the judiciary in New Jersey. The NJSBA does not object to the criticism of the judiciary or its decisions. On the contrary, robust and fair criticism of government is the hallmark of a healthy and vibrant democracy, and is as old as the Republic itself. However, when such attacks on the courts more closely resemble intimidation than critique, we firmly believe they cannot be tolerated in a constitutional democracy. In this case, threatening judges with impeachment serves neither the interests of the public nor the courts.
The New Jersey State Bar Association, incorporated in 1899, is dedicated to the continuing education of lawyers and the public, to reforming and improving the legal system and to aiding in the administration of justice.