Debate Erupts Over Timing of Ruling On Gay Rites by Court in New Jersey

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The New York Sun

“Why now?” was the first question some legal observers had for New Jersey’s Supreme Court last week after it handed down a decision on a gay marriage case.

It struck some as curious that a liberal court would hand down a decision likely to energize Republican voters across the country only two weeks before a midterm election.

“Being a Democrat, my reflexive reaction was, ‘D–n it. Why didn’t they just wait?'” a law professor at Northwestern University who specializes in legal ethics, Steven Lubet, said during a telephone interview yesterday. Mr. Lubet said the answer came to him after “15 seconds of reflection.”

“Well, the opinion was ready to go and it should be issued in due course, electoral politics be damned,” Mr. Lubet recalled thinking.

But the decision has given rise to fresh debate about whether judges, who routinely hold cases for months, and sometimes more than a year, before releasing decisions, should deliver them without considering the political climate beyond the courthouse. The ruling has prompted one renowned law professor at the University of Chicago to float the idea of a national blackout on judicial decisions during the period preceding elections. Legal observers agree that the decision has prompted an interest in a largely unstudied aspect of court history: the timing of judicial decisions.

That history goes back to at least 1857, when the Supreme Court released its opinion in the Dred Scott case immediately after President Buchanan’s inauguration.

Chief Justice Burger timed the decision of the release of Roe v. Wade to follow shortly after President Nixon’s inauguration in 1973, a law professor, Geoffrey Stone, who clerked for Justice Brennan at the time, said. More recently, the former chief justice of Connecticut Supreme Court, William Sullivan, stands accused of an ethics violation for delaying the release of an opinion to benefit a colleague. The former chief judge of the California Supreme Court, Rose Bird, once faced similar accusations.

There are few fixed ethical rules about the release of decisions, although ethicists say judges are not supposed to hold decisions.

“There are no strong ethical guidelines on the matter,” a professor at Harvard Law School, Mark Tushnet, said.

In New York, judges are bound by the court-approved rules governing their conduct.

“The general rule of thumb is an opinion ought to be released in the ordinary course without regard to what is going on politically or other factors extrinsic to the case,” the administrator and head attorney for the New York Commission on Judicial Conduct, Robert Tembeckjian, said.

That rule is not explicitly spelled out, Mr. Tembeckjian said. Instead, he said, the rule comes from a sentence in the judicial conduct code that contains the phrase: “A judge shall not be swayed by partisan interests, public clamor or fear of criticism.”

Mr. Tembeckjian’s counterpart in New Jersey, John Tonelli, when asked what judicial conduct rules address the timing of a decision’s release, said: “We don’t’ have a position on this.” Mr. Tonelli said he could not recall ever hearing of an ethics complaint being filed over the timing of a decision in New Jersey during his 17 years with the state’s Advisory Committee on Judicial Conduct.

The decision last week by New Jersey’s highest court ordered the state Legislature to craft a law permitting gay marriage or providing for civil unions of some sort. Before the decision, the court had held onto the case since February, when it heard oral arguments. While eight months is not an especially long time for a court to keep a case following oral arguments, New York’s highest court, the Court of Appeals, issued its gay marriage decision five weeks after hearing oral arguments in late May.

The chief justice of the New Jersey Supreme Court at the time of the release last week, Deborah Poritz, yesterday declined to discuss the timing of case’s release.

“Our opinions are issued when they’re finished,” Chief Judge Poritz, who has since retired, said.

With voters in eight states considering constitutional amendments to ban same-sex marriage this Election Day, Republican strategists are hoping that the issue of gay marriage helps voter turnout. Within a day of the New Jersey ruling, President Bush had seized on the issue while campaigning in Iowa, saying: “Yesterday in New Jersey, we had another activist court issue a ruling that raises doubts about the institution of marriage,” according to a report in the New York Times.

“No matter what the court does when it has a controversial decision coming out around election time, it will be subject to criticism,” Mr. Tembeckjian said.

“The criticism now is that they released it before the election. Imagine what the critics on one side would be saying if the courts held it until after the election on purpose,” he said.

Two days after the decision, a professor at the University of Chicago, Cass Sunstein, floated the idea of having courts refrain from releasing controversial opinions in the time period before elections “because of the risk that the timing will give the opinion undue salience.” His idea was written in a post to the law school’s faculty Web log under the title “Gay Marriage Timing in New Jersey.”

“There certainly is a reasonable view that the judges should hold their fire in the period immediately before the election, on the grounds that it might distort the debate,” Mr. Sunstein said yesterday.

Such a proposal is unlikely to gain much traction, several law professors said.

A federal law mandating such a blackout on judicial decisions would not be binding for state courts, a professor of law at Vanderbilt University, Robert Rasmussen, said.

A colleague of Mr. Sunstein’s, Geoffrey Stone, also noted that such a rule would mean many important decisions not related to politics would be held up.

Mr. Sunstein also offered drawbacks to such a rule. On the Web log, he said “a reasonable objection”is that “voters deserve to hear about the ruling when they are deciding how to vote.”

Still, Mr. Rasmussen noted that appellate judges have a great deal of leeway to withhold opinions without attracting any attention. They may simply ask their colleagues for more time to write a separate concurring or dissenting opinion.


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