New analysis from a New Jersey Supreme Court attorney shows that justices are mostly unanimous, but distinctive patterns have emerged for the occasions when justices are divided.
The court was unanimous 76% of the time, according to an analysis of the 29 opinions issued so far during the court’s current tenure, as well as three cases that were resolved by orders rejecting certification as granted by shortsightedness.
That’s according to an analysis by Joseph Fischetti, a former legal aide to Chief Justice Stuart Rabner in 2010-11, who is now assistant general counsel at the Valley Health System.
Fischetti was a litigator at Lowenstein Sandler for more than a decade before recently joining his current employer. He said he frequently consults guides that analyze U.S. Supreme Court voting patterns and believes a similar resource focused on the New Jersey Supreme Court would combat misperceptions about the court. He said some observers focused on the few split votes without appreciating the level of unanimity displayed by the court, even though it was made up of a mix of Democrats and Republicans.
The analysis, made public on Sunday at the end of the current legislature, relates to the 29 opinions issued so far, out of 59 appeals heard this legislature. The tribunal did not issue an opinion in the remaining 30 appeals.
When discussing the New Jersey Supreme Court, observers often point to Justice Anne Patterson as the most conservative and Justice Barry Albin as the most liberal.
“It’s a shortcut you can use, but it doesn’t tell the whole story,” Fischetti said. His analysis found that despite the high rate of unanimity, the court split into separate factions when they disagreed, especially in criminal cases.
Justices Lee Solomon, Patterson and Faustino Fernandez-Vina, who were all appointed by Gov. Chris Christie, voted together 100% of the time.
Fischetti found that Patterson, Solomon and Judge Fabiana Pierre-Louis, who was appointed by Gov. Phil Murphy, voted with Chief Justice Rabner 93% of the time.
Fernandez-Vina voted with Rabner 89% of the time, and Judge Barry Albin, who was appointed by Gov. Jon Corzine, voted with Rabner 86% of the time.
Albin is the most prolific dissenter, issuing four dissenting decisions, Fischetti said.
Solomon issued a dissent, and Solomon, Patterson and Fernandez-Vina issued a joint dissent. It was in State against Lodzinski, in which the court voted 4-3 to overturn the murder conviction of Michelle Lodzinski, who was convicted of the 1991 murder of her 5-year-old son, Fischetti said.
“In criminal cases, you can see certain voting blocks. In the last term, you could see Albin, Pierre-Louis and sometimes LaVecchia at one end in split decisions, lining up with the criminal defendant, and Solomon, Patterson and Fernandez-Vina siding with the state, and with Rabner and sometimes LaVecchia in the middle. justice,” Fischetti said.
“But in civil cases it’s much less predictable, and I think that’s where the general public’s idea of Patterson on the right, Albin on the left, breaks down. In civil cases, it’s much more idiosyncratic, justice by justice. It can be less predictable in many ways,” Fischetti said.
So far in the current term, judges have sided with the prosecution in five out of 15 criminal cases, or 33%, and plaintiffs in eight out of 12 civil cases, or 67%.
Many people think that when the court grants certification, that means an overturn is likely, but in the just-ended term, overturns and affirmations were about evenly split: 44% of cases were cancelled, 35% have been fully confirmed and 9% have been confirmed. confirmed as modified, according to the study.
Fischetti’s study found that the Supreme Court explicitly adopted the reasoning from the opinions of two Appellate Division judges. They are Jack Sabatino in State against Gerenaand Carmen Messano, in Dobro v. BCIA. Ronald Susswein was the only Appellate Division judge to dissent and have the Supreme Court adopt the opinion on appeal, in State vs Sims, according to Fischetti.
Diversity lagged in Fischetti’s chart of the demographics of lawyers litigating in court, including those litigating amici.
He found that 91% of those attorneys appearing in court were white, 57% were male, 54% were white male, and 36% were white female. 4% were black women, 2% were Hispanic men, 2% were Hispanic women, 1% were Asian women, and 1% were black men.
And most of the women and people of color who argued represented the Public Defender’s Office, the Attorney General’s Office and county prosecutors’ offices, Fischetti said.
“If you remove those from the Supreme Court bar, the arguing lawyers are much more likely to be white males, and to a lesser extent amici as well,” Fischetti said. “What you see is that public sector litigants on the Supreme Court are much more diverse, both by gender and race, than private sector litigants.”
The study comes amid an upheaval in the court: LaVecchia and Fernandez-Vina recently reached mandatory retirement age and left.
Albin is expected to retire on July 7.
And Murphy’s nomination of Rachel Wainer Apter for the LaVecchia seat has stalled due to senatorial courtesy, with Republican Sen. Holly Schepisi blocking a vote on Apter. Judge Jose Fuentes, presiding judge of the Appeals Division, temporarily sits on the Supreme Court.
Murphy’s nominations for on-court vacancies could shake up those divisions, Fischetti said.
“There’s no doubt there’s going to be a massive change, for the court to have three new members at the same time,” Fischetti said. “Turning half the court around in the blink of an eye will be a momentous change, but hopefully that won’t stop the court from maintaining all the great things that have historically made it a great court.