Impending departure of ‘constitutional giant’ has some wondering about future of N.J. high court

By: - June 6, 2022 7:09 am

N.J. Supreme Court Justice Barry Albin, one of the court's staunchest liberals, will retire in July, leaving the court with three vacancies. (Courtesy of New Jersey Courts)

The imminent retirement of Justice Barry Albin from the New Jersey Supreme Court has some criminal justice reformers anxious about the future.

Reformers say Albin, one of the court’s staunchest liberals, brought a unique perspective to the court as the only sitting justice with a background in public defense and civil rights. He will hit the mandatory retirement age of 70 next month after serving on the court since 2002.

“Justice Albin is irreplaceable,” said Jenny-Brooke Condon, a professor of law at Seton Hall Law School. “They’re very big shoes to fill. Justice Albin’s work as a criminal defense attorney mattered immensely in the perspective he brought to the court.”

Albin’s final weeks on the state’s highest court come as New Jersey’s judicial vacancies are at a historic high and Gov. Phil Murphy’s last pick for the Supreme Court has been blocked for almost a year.

Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, applauded Albin’s commitment to civil rights and equality and said he hopes his replacement will be like-minded.

“As important as who fills the seat is the fact that it gets filled: a court absent three justices cannot serve its critical role in our democracy,” Sinha said. “The Legislature must act to fill all three vacancies at the Supreme Court, and candidates with Justice Albin’s rights-oriented approach to the law should be considered for all three positions.”

A ‘constitutional giant’

One attorney who has argued before Albin called him a “constitutional giant” who sees the humanity in every case.

“He recognized that his decisions impacted real people who were vulnerable before the power of the state,” said Joseph J. Russo, first assistant public defender for the Office of the Public Defender and former head of its statewide appellate section.

Albin authored some of the court’s most controversial decisions, such as its recent ruling that freed Sundiata Acoli, a former Black Panther convicted of killing a state trooper in 1973. The decision was lambasted by a bipartisan group of officials that included Murphy.

“His decision in Acoli really demonstrates the commitment to the rule of law, even when it is a very loaded and difficult decision to make,” said attorney CJ Griffin, who has argued several cases before Albin.

That requires “enormous moral courage,” Condon added.

“He takes his responsibility to see that justice is done with enormous seriousness and fidelity to the law,” Condon said. “He does that even when the outcome might expose the court to criticism or the pressures of people in government who don’t like the outcome. That never dissuades him.”

Albin also is well-known for his powerful dissents, including his fiery objection last May when the court initially upheld the conviction of Michelle Lodzinski in the murder of her 5-year-old son.

“A murder conviction cannot rest on speculation. A jury verdict sheet is not a dartboard,” Albin wrote in his dissent.

Just seven months later, the court overturned Lodzinski’s conviction after it made the unusual decision to reconsider the case— and Albin wrote that opinion, which split along party lines.

“He is deeply committed to justice and has authored dozens and dozens of beautifully written dissents when he’s felt the majority was at odds with the law or the constitution,” Griffin said. “I hope that he’s replaced by someone just as committed to justice and just as passionate about doing the right thing and writing those powerful dissents, which have in some cases later become majority opinions.”

Judicial independence key

Whoever Murphy picks to replace Albin, reformers hope he acts soon. Come July, the seven-member court will be short three full-time justices. Former Justice Jaynee LaVecchia retired in December and former Justice Faustino Fernandez-Vina retired in February.

Murphy, a Democrat, nominated Rachel Wainer Apter to replace LaVecchia in March 2021, but state Sen. Holly Schepisi (R-Bergen) has blocked her confirmation using a procedural move known as senatorial courtesy. Superior Court Judge Jose Fuentes has replaced LaVecchia on the Supreme Court temporarily until the state Senate confirms a more permanent replacement.

When Fernandez-Vina retired in February — he also had reached the mandatory retirement age — Chief Justice Stuart Rabner said he would not appoint a temporary judge to replace him because the only judge he could appoint was a Democrat who would shift the court’s ideological balance. The Murphy administration has said it will not nominate Fernandez-Vina’s replacement until Wainer Apter’s nomination is heard by the Senate.

The vacancies concern reformers.

“The justices already work around the clock, so being short three members will be extremely difficult for them, and it also deprives litigants the benefit of seven justices considering their appeals,” Griffin said.

Rabner himself sounded the alarm about the vacancies in a speech last month, saying three vacancies on the seven-member court “is not what the framers of our constitution ever intended.”

As the U.S. Supreme Court has become more politicized, New Jersey’s Supreme Court has historically maintained its judicial independence, with governors — by unwritten rule — maintaining a four/three party split on the court.

The current court has three Democrats, Rabner, Albin, and Justice Fabiana Pierre-Louis, and two Republicans, Justices Anne Patterson and Lee Solomon.


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Dana DiFilippo
Dana DiFilippo

Dana DiFilippo comes to the New Jersey Monitor from WHYY, Philadelphia’s NPR station, and the Philadelphia Daily News, a paper known for exposing corruption and holding public officials accountable. Prior to that, she worked at newspapers in Cincinnati, Pittsburgh, and suburban Philadelphia and has freelanced for various local and national magazines, newspapers and websites. She lives in Central Jersey with her husband, a photojournalist, and their two children.