Christie v. Court: Is threat for real?

Just how powerful is he?

Gov. Christie said last week that he had mulled defying a possible order from New Jersey's Supreme Court to restore funding to schools.

The statement, on a call-in radio show, left legal scholars wondering whether this was the Republican governor just spouting threats and bluster - or foreshadowing an unprecedented break with tradition.

If Christie ignores the ruling, scholars said, he could be ruled in contempt of court and personally fined, he could be impeached for violating his oath of office, or he could trigger a constitutional crisis and the statewide closing of schools.

Or maybe nothing would result, and voters would be left to decide whether to reelect a governor who overruled the highest court in his state in the name of fiscal prudence.

To the Rutgers University faculty member who founded the group suing for more school funding, such defiance is so unfathomable it calls to mind the Arkansas governor who, 54 years ago, ignored the U.S. Supreme Court order to integrate public schools.

"In our system, one branch doesn't say to another: 'Sorry, you have acted in your authority, but I don't like your actions, so I don't have to follow it,' " said professor Paul Tractenberg. "Christie might not be literally standing in the schoolhouse doors and blocking them, but he's doing something very" similar.

The current case had its origins nearly 40 years ago. The nonprofit Education Law Center sued the state for more money for poor schools, saying equitable funding was a right under the state constitution because of a provision, approved by voters in 1875, mandating a "thorough and efficient" education.

Christie has argued that the resulting court rulings, known as Abbott decisions, have been a failure because poor districts get a disproportionate amount of state funding - and spend far more per student - yet still have abysmal graduation rates and standardized test scores.

In 2010, to close a yawning budget deficit, Christie eliminated $1 billion in school funding. He restored just $250 million in his proposed budget for the fiscal year that will begin in July.

Money, he argues, doesn't ensure students a good education. Instead, Christie has proposed to improve the lot of impoverished students by expanding charter schools, tying teacher tenure to students' academic performance, and rewarding educators in poor schools with higher salaries.

The Education Law Center has sued, saying the 2010 cuts violated the funding requirement set by the courts. Peter G. Verniero, a former Supreme Court justice who represents the Christie administration, has argued that the court must respect the separation of powers and allow the Legislature to handle spending.

In a decision expected in the coming weeks, the Supreme Court could mandate that Christie fork over as much as $1.7 billion. Its ruling could not be appealed to federal court.

If forced to pay, Christie said last week, he would not, "under any circumstances," raise taxes on an overtaxed public. He could cut spending, he said, but that would lead to the immediate closure of "many" hospitals, the layoff of police officers, and major cuts to Medicaid.

"These are ugly, ugly choices," he said Thursday night on the Ask the Governor show on New Jersey 101.5 FM.

The host then asked Christie if he could simply ignore the court's ruling.

"Well," he responded, "that's an option, too. . . . Have I thought of that? Of course I have."

Since he campaigned for office, Christie has railed against the court not only for its school-funding rulings but also for its requirements that municipalities provide affordable housing for the poor.

Judges "sound more like they're running for governor than trying to be a judge on a bench," he said on the radio show.

He called out Justice Barry T. Albin, who during a hearing on school funding last week brought up Christie's refusal to reinstate a so-called millionaire's tax, which some Democrats have said could help fund the schools.

"I've got to wonder what a nonelected justice of the Supreme Court - in the case that's supposed to be talking about constitutional issues - is doing bringing up any tax and advocating the raising of any tax . . . and then also declaring how that money should be spent once it's raised," Christie said.

Albin, he added, is a "perfect example of how unelected lifetime judges in our state have lost their sense of place in our democracy."

Taxes were brought up because of the inherent conflict in the school-funding case, said Rutgers-Camden law professor Robert F. Williams.

On one hand, New Jersey has a constitutional requirement to balance its budget, so available money supersedes spending mandates. On the other hand, the lack of money is, in part, a political decision that can be rectified by raising taxes or cutting spending.

Elected officials have repeatedly failed to reconcile this issue. In that sense, they have defied the court in much the same way that Christie has threatened, leaving justices to grapple with the Abbott case decade after decade, said David S. Cohen, professor at the Earle Mack School of Law at Drexel University.

"This is one of the big issues when the judiciary gets involved in major societal reform," Cohen said.

"As much as [justices] may have a correct interpretation of the state constitution and have the right legal and moral argument . . . they can't march into Christie's office or the Legislature and say, 'Do this or else,' " he said.

The only similar instance occurred in 1976, when the Legislature defied the court's orders in a related case on increasing school funding, resulting in the statewide closing of schools.

Fortunately, it was July, and in short order lawmakers and the governor passed the state's income tax to raise the needed money.

Christie's threat is taken seriously because he has shown a willingness to reject precedent. Last year, he did not reappoint Supreme Court Justice John Wallace Jr., a political moderate and the court's only African American. Instead he nominated a lawyer, Anne Patterson, whom the Democratic-controlled Senate won't confirm. It was the first time since New Jersey ratified its new constitution in 1947 that a justice had been denied tenure after a seven-year probationary period.

Former Republican Gov. Tom Kean once called a justice "communistic," according to Williams, yet renominated him because to do otherwise would "interfere with the independence of the court."

Kean didn't want justices to look "over their shoulders."

Now justices are "walking on eggshells," said Rutgers-Newark law professor Frank Askin. One justice, Helen E. Hoens, will be up for tenure during Christie's current term and is therefore "under the gun," Askin said.

Could the governor's statement last week just be a means of intimidation? And could the court's ruling show it worked?

"We will never know the answer to that question," Williams said, "but everyone will speculate about it, either way."