What Makes A Court Supreme

By Daniel J. OHern

Former Justice of the New Jersey Supreme Court Daniel O'Hern provides an insider's view about the secretive deliberations of his time on the New Jersey Supreme Court when it dealt with such monumental cases as Baby M. Harvard Professor, Laurence Tribe called the Court the Greatest Court in Land during Justice O'Hern's tenure. It is the Brethren of its day for one of the great State Supreme Court's in this history of the United States. It is a sharply written, intellectual, insightful, but also very witty and funny. An enjoyable and easy read for those who enjoy reading about the inner workings of a Supreme Court. Justice O'Hern served on the Court from 1981-2000. He was a Harvard Law School Graduate, who was a law clerk to Associate Justice William J. Brennan of the United States Supreme Court. He passed away in April of 2009.

• Language: English
• Publisher: Daniel J. OHern
• Release date: Sep 23, 2013
• ISBN: 9781576254158

Book preview

What Makes a Court Supreme

Daniel J. O’Hern

What Makes a Court Supreme

The Wilentz Court From Within

Daniel J. O’Hern

Smashwords Edition

Copyright © 2009 by Daniel J. O’Hern

New Jersey law Journal Books, a division of ALM Media, LLC, with permission.

All rights reserved. Duplication without permission is prohibited.

For further information about New Jersey Law Journal Books contact:

New Jersey Law Journal

P.O. Box 20081

238 Mulberry St.

Newark, N.J.

[phone]

www.njlj.com

Composition by Douglas L. Jones

Contents

About the Author

Editor’s Note

Acknowledgments

1 Introduction

2 The Chief

Robert N. Wilentz

3 The Senior Justice

Robert L. Clifford

4 Stretch or Mandrake

Alan B. Handler

5 Grover

Stewart G. Pollock

6 Doc

Marie L. Garibaldi

7 Wall Street

Gary S. Stein

8 The Mayor or the Monsignor

Daniel J. O’Hern

9 The Clark

Stephen W. Townsend

10 The Past as Predictor

11 What Makes a Court Supreme

About the Author

Daniel J. O’Hern spent the bulk of his career in public service, holding positions that included town council member, mayor, gubernatorial cabinet official and chief counsel, and New Jersey Supreme Court justice. On the bench, he and his colleagues resolved some of the most complicated cases of the day, such as those involving equal educational opportunity, the right to die, exclusionary zoning and surrogate pregnancy.

Born in Red Bank, N.J., on May 23, 1930, O’Hern graduated from Fordham College in 1951 and then served in the Navy for three years, achieving the rank of lieutenant junior grade. His tour included duty aboard the USS Essex during the Korean War.

He graduated from Harvard Law School in 1957 and served as a law clerk to U.S. Supreme Court Justice William Brennan Jr. during the 1957-1958 term. O’Hern returned to Red Bank to practice with the firm of Vincent McCue and later with Abramoff, Apy and O’Hern. A Democrat, O’Hern was active in local politics, serving as a Red Bank councilman from 1962 until 1968 and as mayor from 1969 until 1978. Gov. Brendan T. Byrne named him commissioner of the Department of Environmental Protection in 1978 and his chief counsel in 1979. O’Hern became an associate justice on Aug. 6, 1981, replacing Mark A. Sullivan, who retired.

While on the Court, O’Hern served as chairman of the Judicial Salary and Pensions Committee, an adviser to the New Jersey Commission on Professionalism in the Law, chairman of the Family Court Reorganization Committee and a member of the Council of Judges of the National Council on Crime and Delinquency.

After he left the Court on May 23, 2000, at the mandatory retirement age of 70, O’Hern continued his service to the state and the legal profession. Beginning that year, he became a member of the New Jersey Advisory Committee on Judicial Conduct and the New Jersey Law Journal’s Editorial Board.

In 2004, he and Professor Paula A. Franzese of Seton Hall University School of Law were appointed special ethics counsel to Gov. Richard J. Codey. They submitted a comprehensive ethics audit and agenda, resulting in significant reform in the executive branch and promulgation of New Jersey’s first Uniform Ethics Code.

At the time of his death on April 1, 2009, O’Hern was of counsel to the firm of Becker Meisel, working with his son Daniel J. O’Hern Jr. in the firm’s Red Bank office. This book was completed shortly before he died.

Editor’s Note

Daniel J. O’Hern served as an associate justice of the New Jersey Supreme Court from Aug. 6, 1981, until May 23, 2000. During that time, he saved memos from his colleagues, letters from Chief Justice Robert N. Wilentz to members of the Court, charts that outlined the pros and cons of cases during Court conferences, sketches by members about their day-to-day life together and oral arguments, and photographs of the justices, among other mementos. O’Hern used these keepsakes, his recollections, and notes to himself to form the foundation for this book, which looks at his years on the Wilentz Court and at the members who served with him.

O’Hern wrote this book to convey the traits that shape a quality court. He wanted future governors to know what made a cohesive, effective and admired bench, and to keep those qualities in mind when filling vacancies on New Jersey’s highest tribunal.

Wilentz’s attributes were at the top of O’Hern’s list of necessary traits. The chief justice had the intellectual heft and the leadership ability to tackle some of the nation’s most complex legal issues. O’Hern also tied the Wilentz bench’s success to the collegial Court the chief justice created; Wilentz’s graciousness, charm and wit led to an atmosphere that allowed the other members to flourish. They were a close group. It was not unusual for Wilentz to end personal notes to the others with Love, Robert, or to send flowers or wine to their hotel rooms when they were on vacation. He also permitted the Court’s closed-door debates to last for days so each member could feel that his or her viewpoint had been heard.

And that spirit of collegiality, in turn, shaped their decisions.

In the end, the traits O’Hern felt characterized a quality bench were the building blocks he found essential to his overall goal: public confidence in the judiciary and the legal profession. In his eyes, that was the way the Court achieved legitimacy.

— Pamela E. Brownstein

Executive Editor New Jersey Law Journal

Acknowledgments

A Poem for Seven Justices was the title of an op-ed column by A.M. Rosenthal in The New York Times on Feb. 5, 1988. It was a piece about the New Jersey Supreme Court's opinion in the Baby M case over a surrogate mother's contract. Rosenthal wrote: I wish I could write or commission a poem for Chief Justice Robert N. Wilentz and his six colleagues on the Supreme Court of the State of New Jersey. They gave us all some happy news by voting 7 to 0 that mercy, compassion and human dignity are indeed part of the law and must be observed — particularly by judges.

Of course, to us the case was not about mercy and compassion, but about the limits of the law and the ability of a person to sell a child. Still, Rosenthal's column was a moving tribute. I always thought of writing that poem. This is it, without rhyme.

I acknowledge and thank the law reviews of Rutgers University School of Law in Newark and Camden and Seton Hall University School of Law, in whose pages many of the portraits of the justices first appeared.

I also acknowledge the help of two of my law clerks, Holly English and Dena Reger, who assisted and encouraged me in writing these recollections. Special thanks go to Will Reger, who did some of the early graphics for the book. I thank Justice Robert L. Clifford, who proofread these pages as he proofread my opinions.

Finally, I thank New Jersey Law Journal Publisher Robert Steinbaum and Executive Editor Pamela Brownstein. They encouraged me to publish these recollections in the Law Journal. Pamela is the one who put it together.

My purpose is not to excite the public about the human frailties of the justices. Everything in the book is within the public domain or of such a nature that my colleagues would not regard its disclosure as a breach of the trust that is necessary to the functioning of a collegial court. We trusted each other implicitly.

My goal is to illustrate the qualities that make a person a great judge on an ensemble court. My hope is to encourage future governors and senators to seek the appointment of extraordinary people who will preserve the excellence of the New Jersey Supreme Court.

Chapter 1

Introduction

Most readers of this tribute are probably familiar with the decisions of the Wilentz Court in areas such as equal educational opportunity, the right to die, exclusionary zoning and lawyer discipline. I will speak of them, but not exhaustively. Primarily, I want to emphasize how those decisions were shaped by the type of Court run by Chief Justice Robert N. Wilentz, particularly his warm and close relationship with the associate justices.

Although we had feared for his health, the news we received on June 24, 1996, still came as a shock to us. I was in the library of my office in Red Bank when my secretary, Carol Rittershofer, called to say that the Chief Justice was on the telephone. It was a beautiful summer morning and I could see the Navesink River sparkle in the sunlight outside my window. The contrast between our settings was painful. The Chief Justice was speaking from his room at Mount Sinai Medical Center in New York City. He had been there since late May with a troubling condition that had first manifested itself as a foot disorder.

The members of the Court had last seen the Chief Justice on May 23 at his home in Deal, where we held part of that day’s conference as a convenience to him. As we walked onto the porch, he greeted each of us with warmth, but his pain was immediately apparent. He moved from the porch to the dining room with a noticeable limp, though nevertheless led our discussion with humor and precision. It was the last conference we were to attend with him.

When the Chief Justice called me on June 24, he said he would submit his resignation to Gov. Christine Todd Whitman later that morning. He had called each member of the Court in order of seniority, telling us that cancer had spread throughout his body and that he no longer could carry out his duties. He wished us each to know before the official announcement was made. I was struck by his unfailing courtesy in calling each of us personally. When I said it was so unfair he should fall sick just eight months before retirement, the 69-year-old Chief Justice replied, I am an old man, Dan. More than anything, that remark conveyed to me a sense of his suffering. Until then, except when especially burdened, he had presided over the Court with a boyish charm. The charm was gone. Cancer of the brain had robbed him of his health. I called Carol into the library and told her what the Chief Justice had told me. We had feared as much when he had written me about a week before concerning one of the last opinions of the term, in which his was the crucial fourth vote. He had enclosed his usual insightful comments on the circulating opinion, made several substantive additions and concluded, Dan, you’d better file this quickly.

Almost every member who sat on the Court with Robert Wilentz has described his or her reaction to his resignation. Each of us was overcome with grief. We had lost a leader, a colleague and a friend. Later in the day, my son Jim called to ask how I was. I said