An Afternoon in the Law

Today I attended the 2010 John Marshall Harlan '20 Lecture in Constitutional Adjudication at the Woodrow Wilson School for Public and International Affairs on Princeton University's inspiring campus. The speaker was the Chief Justice of the Supreme Court of New Jersey, the Honorable Stuart Rabner. Chief Justice Rabner, like Justice Harlan before him, graduated from Princeton.

Ten minutes before the program was to begin, I involuntarily networked with a man who crossed several seats to get the business going. He was good at the networking wheeze, and before long I had volunteered nearly everything I knew about myself except my social security number. I am proud of the fact that I am uncomfortable networking. Like Bacon's Nature, I do not reveal my secrets, but rather only respond to a line of questioning. Alas, my guy was up to the task, and extracted secrets. Presently and mercifully we were brought to order.

The Chief Justice was introduced to the capacity crowd in Dodds Auditorium by a professor from the Woodrow Wilson school, who recited, apparently without omission, the Chief Justice's embarrassingly long list of absurdly impressive academic achievements. The audience learned too that the Chief Justice's father survived a Soviet work camp. And that the Chief Justice was a Princeton University tour guide while making his way through the institution, trailing clouds of glory. The Chief Justice is a remarkably amiable and intelligent man, and spoke extemporaneously for close to a half hour about New Jersey's constitutional history. He spoke too of the structure of the state's court system, which was overhauled in 1947 and which was used as the model for both the Alaskan and Hawaiian court systems.

The Chief Justice spoke at some length and specificity about a few of the programs the New Jersey courts have initiated. For example, the courts have a program whereby lawyers in the state volunteer to mediate between mortgagees and mortgagors, in an effort to avoid foreclosure proceedings. The courts have also instituted a program (now operating in four counties; soon to be five) where returning veterans who end up in criminal court, in appropriate cases, are diverted onto a counseling track and are assigned a military mentor. This program was inspired by the notion that returning veterans sometimes have trouble assimilating back into society, and that, in those cases, society should make an extra effort to aid that assimilation.

The Chief Justice ended his remarks by stressing how important he considers it that the state's courts extend to all parties procedural due process. Pointing out that because there is always at least one party unhappy with a court's decision, it is imperative that the judicial process be viewed as fair and impartial.

After the Chief Justice's main remarks, he joined the Provost of Princeton University, Christopher L. Eisberger, in those giant leather chairs such people always repair to when the question and answer session begins. The Provost, a graduate of Princeton and the University of Chicago's Law School, and an author of a book on the appointment process of Supreme Court Justices, asked the Chief Justice several of his own questions before eventually asking for questions from the audience. The mundane questions asked by the Provost yielded more interesting answers, mainly because the Provost understood that asking interesting questions to a sitting Chief Justice, who after all must remain circumspect with an eye toward future cases, means you get anodyne answers back. The Princeton students who asked questions of this sort, and who must have been unaccustomed to not getting interesting answers back, stood fast at the microphone after the Chief Justice stopped his devitalizing answers, retreating to their seats only after the Chief Justice blinked at them several times.

Here are some interesting differences between New Jersey constitutional rights and federal constitutional rights, which the Chief Justice cited in the course of his answers. Remember of course that the federal rights set a floor which state constitutional text and interpretation are free to exceed in the direction of greater individual rights:

1) Folks in New Jersey have a reasonable expectation of privacy in the trash they put out on the curb. Under the federal Constitution, that's not so.

2) With respect to a search of a house, for example, a consent must be knowing and voluntary under the federal Constitution. In New Jersey, homeowners/dwellers have the additional protection that the police must inform them they have a right to refuse such a search

3) In New Jersey, a passenger in a car that is stopped and searched, and who is found during that search to possess a gun, for example, has standing to challenge the grounds for the search. Under the federal Constitution, the passenger would not normally have sufficient possessory interest (i.e. does not own the car) to have standing to challenge such a search.

One question elicited the Chief Justice's advice to the students in the audience who are headed to law school. The Chief Justice did not mention that the legal job market is poor, much less suggest an alternate career path on that account. He was talking to Princeton students, after all, who, it was clear from the unspoken assumptions implicit in both the question and answer, were headed to top law schools. The Chief Justice advised the future law students to use their summers to try out firms both big and small, and not to go to law school with too certain an idea of what you want to do. This last bit of advice, in retrospect, and for reasons not contemplated by the Chief Justice, is comically relevant to me.

The questions from the audience exhausted, the Provost reserved for himself the last question of the afternoon. And, apparently unable to help himself, asked the Chief Justice a manifestly interesting question: Does the Chief Justice have a view on trying terrorist suspects in the civilian court system. The Chief Justice declined to offer a view on prospective cases, saying only that such trials have yielded results in the past. Then the Provost offered his own view on the question, which, whether or not correct, was entirely unsurprising.

It was a good afternoon in the law.