State v. W.B., 205 N.J. 588 (2011). After some twists and turns, recounted here, Justice Rivera-Soto stated that he would vote in cases where Judge Stern, who has been temporarily assigned to the Supreme Court, sat, except where Judge Stern cast the deciding vote. In this case, however, Justice Rivera-Soto voted with the 4-3 majority, which included Judge Stern, the author of the majority opinion. Justice Rivera-Soto did not explain why he voted in the case. Seemingly, however, his position may have evolved again, and for the better.
Justice Rivera-Soto’s action had no practical effect on the litigants. The majority voted to affirm the decision below. Had Justice Rivera-Soto abstained, the resulting 3-3 vote would also have constituted an affirmance. The difference is in the effect of the Supreme Court’s decision in this case. A 3-3 decision is not precedential, while a 4-3 ruling is. Justice Rivera-Soto’s participation thus gave Judge Stern’s majority opinion precedential effect. That is as it should be.