The New Jersey Supreme Court in the 1990s: Independence Is Only Skin Deep

I. INTRODUCTION The prevalent view of American constitutional law and the American judicial system largely overlooks the existence of fifty state high courts and fifty state constitutions. This commonly-held notion, believed by lawyers and lay people alike, maintains that the United States Constitution is the primary source of individual rights, presupposing that the United States Supreme Court is the final arbiter of constitutional rights and that the decisions which come from the Court are the law of the land, binding on all. It ignores the reality that the United States Supreme Court's interpretation of the Federal Constitution sets only the floor for individual rights, establishing the minimum allowable amount of protection of these rights, while state courts and state constitutions are free to be more protective.(1) This prevalent notion ignores the fact that a state high court's decision on an issue of purely state law is the final say on that issue, unreviewable by the United States Supreme Court.(2) While it may be understandable that society in general places such an importance on federal constitutional law, it is somewhat surprising to see the same priority given to federal law in decisions of state high courts. Only recently have state high courts begun to re-examine their own state constitutions.(3) Until the retirement of Chief Justice Earl Warren in 1969, the United States Supreme Court took an active role in protecting individual rights, adopting an expansive view of federal constitutional rights in order to provide protections where the state courts were failing to protect individual rights under state constitutions.(4) As the civil rights and liberties movement declined, and the Court was filled with more conservative Nixon, and then Reagan, appointees, the Supreme Court returned to the practice of interpreting the Federal Constitution in such a way as to define the minimum amount of protection, leaving it to the states to determine the amount of protection they deemed appropriate under the state constitution.(5) Adjusting to this new role of independent state constitutional adjudication, states have adopted different approaches to analyzing state constitutional issues. Some have adopted a dual reliance or dual sovereignty approach, whereby both the state and federal constitutions are relied upon to determine a constitutional issue.(6) While this approach is beneficial in that it ensures some analysis of the state constitution, it also creates a body of unreviewable interpretations of the federal constitution.(7) Other courts take a primacy approach, looking first to the state constitution, and only turning to the Federal Constitution if the alleged infringement is permissible under the state constitution.(8) This approach is the most independent approach, consistent with the proposition that state constitutions are the basic charters of individual liberties.(9) This approach also precludes review by the U.S. Supreme Court if the issue can be decided solely on state constitutional grounds.(10) Many courts prefer a supplemental approach, however.(11) In this model of state constitutional adjudication, the state court evaluates an issue under the Federal Constitution first.(12) If the alleged infringement violates the Federal Constitution, the examination ends.(13) If it does not, then the challenged action is further evaluated under the state constitution to determine if a greater degree of protection exists under the state constitution.(14) While this affords less independence to the state constitution, it may be more consistent with the roles of state and federal constitutional law as those roles have evolved in this century.(15) This High Court Study will examine the New Jersey Supreme Court and the approach it has taken in resolving some of the issues which have been at the forefront of American society during the past decade. Part II will look at the death penalty,(16) Part III will examine the Megan's Law decisions,(17) and Part IV will discuss cases involving the rights of anti-abortion protesters. …