Lakewood Law
II. Judicial Supremacy
A. The New Jersey Plan
“Many [New Jersey] court cases, it is said, result from the fact that the legislature lacks the will or the capacity to write good legislation, and its work must be corrected by the judiciary.”1 If the legislature has shirked from providing for the statewide general welfare, the judiciary has done the job. New Jersey has a long tradition of an activist judiciary, and a legislature acquiescing supremacy to its Supreme Court.
The 1780 New Jersey Supreme Court ruling in Holmes v. Walton might be the first case in which any court ruled the act of a sovereign legislature to be unconstitutional. The common law, with the right of trial by twelve, was deemed by the original constitution of 1776 to be the law of the land. The common law provides for a jury of twelve but an act of the legislature allowed a jury of six to render a verdict in the confiscation of property of those who violated the law by trading in New Jersey territory held by the British during the Revolutionary War. This was ruled unconstitutional. The legislature submitted to the ruling, and the property seized was returned to the owners.
The officials involved in the case went on to represent New Jersey at the United States Constitutional Convention2 . The New Jersey Plan is famous for advocating a unicameral Congress with equal representation among the states like that under the Articles of Confederation. It ultimately led to equal state representation in a United States Senate after the Great Compromise with the Virginia Plan of proportional representation by population, setting up our bicameral national legislature.
The New Jersey Plan is somewhat less known for including the Supremacy Clause into the United States Constitution.3 The Supremacy Clause made all state judges bound by federal laws beyond the reach of their legislatures notwithstanding any of resolutions to the contrary. It was only a matter of time before John Marshall used this New Jersey principle in declaring the supremacy of his Court to the federal legislature in Marbury v. Madison.4 “The honor of a formal recognition and proposal of the principal of judicial nullification of unconstitutional law, in our federal system must be ascribed to the authors of the Jersey plan.”5 The New Jersey rule of judicial supremacy on a national scale became the “Marbury rule . . . [limiting] powers of Congress by dissecting the Constitution even after Congress has made a reasonable interpretation of that document.” 6
B. The Rule of Lawyers
New Jersey justices are not strangers to politics. Every New Jersey Chief Justice under the 1947 constitution has served in the rough and tumble of New Jersey politics, either as an elected or an appointed official. Chief Justice Vanderbilt was the state’s most powerful political boss and Chief Justice Hughes was a governor. None of them “has disdained the ‘political thicket.’ As party organizations weakened and the legislature’s power centers fragmented, the courts were increasingly called on to resolve difficult political issues.” 7 This attraction of the justices to the great issues of the day is exacerbated by that the fact that “lawyers who serve in the governor’s office are commonly appointed to the supreme court and law students who become clerks for judges frequently find prominent roles in subsequent administrations.” 8 The justices most often do not impose specific details upon the legislature but “often try to combine active participation in the determination of state policy with appropriate deference to the prerogative of elected officials and mandate attention to pressing problems without foreclosing the exercise of discretion and political judgment.” 9
New Jersey, whether through judicial supremacy at the top, or the municipal attorney at the bottom, is ultimately a state run by the lawyers. “Commonly, those on retainer are political appointments—especially the attorney, who usually had political ties to council members and a policy-making role. Municipal attorneys are often past or present members of the state legislature or have other connections to Trenton. Many communities also retain other lawyers to work with their zoning and planning boards. With civil service and competitive bidding requirements limiting the classic forms of political patronage, lawyers are the most ubiquitous patronage beneficiaries.”10
C. Judicial Vigilance
The men who crafted the Jersey Plan introduced the supremacy of judges over the legislatures of their sister states into the United States Constitution. Their institutional heirs in the New Jersey Supreme Court, in response to the United States Supreme Court “one person, one vote”11 decision, used the supremacy clause to nullify, not only acts of the legislature, but to nullify their own constitution. The New Jersey Court invalidated representation by geography, one senator for each county in the Senate.12 The Court ordered a constitutional convention in 1966 to provide for restructuring districts based on population, bringing an end to the original concept of the New Jersey Plan in New Jersey. 13
The amended constitution provided for at most two legislative districts each for Jersey City and Newark after their decline in population in the 2000 census.14 The New Jersey court ignored the crossing of municipal boundaries provision in the constitution in favor of creating six “influence” districts, three districts for each city and its outside area in which “minorities [will] make up less than a majority of the voting-age population but the minorities nonetheless are able to elect preferred candidates when the group is large enough and cohesive enough to effectively influence elections.”15 Without any direct ruling by the United States Supreme Court,16 the New Jersey court ruled that its own constitution was unconstitutional under the federal Voting Rights Act (VRA).17 Indeed, the New Jersey court misinterpreted the VRA by requiring these kinds of influence crossover districts. The United States Supreme Court in 2009 ruled that a vote dilution claim is only supported when minorities would otherwise make up a majority in a district. Refusing to take “racial considerations even further into the districting process, we must not interpret §2 to require crossover districts.”18
The New Jersey Supreme Court has also gone beyond the dictates of the Fourteenth Amendment to correct de facto segregation. It disallowed Morris Township from building its own high school, forcing it to continue to send its students to neighboring Morristown High School to achieve desegregation. 19 The Education “Commissioner must have power to cross district lines to avoid ‘segregation in fact’ at least where, as here, there are no impracticalities and the concern is not with multiple communities but with a single community without visible or factually significant internal boundary separations.20 The United States Supreme Court three years later had a different interpretation of the constitutional requirement, something more than de facto segregation but “an interdistrict violation and interdistrict effect, [otherwise] there is no constitutional wrong calling for an interdistrict remedy.”21 The court, hence, has shown little regard for the multiplicity of boundary lines in the state.
D. Mount Laurel
Perhaps the most expansive case of judicial supremacy was the Mount Laurel decision.22 The New Jersey constitution authorized the legislature to provide municipalities with zoning authority. 23 The legislature authorized local control of zoning per the constitution.24 Towns developed ordinances requiring single-family homes and for subdividing areas into large parcels, too expensive for the urban poor.
The New Jersey Supreme Court required zoning ordinances to be crafted for the “general welfare” of the state as a whole, that a “provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare.” 25 Towns had to provide opportunity for the poor in a region including nearby Camden to move to the developing suburbs. 26 Additionally, it banned zoning ordinances designed to “restrict the number of families in the municipality having school age children and thereby keep down local education costs. Such restrictions are so clearly contrary to the general welfare as not to require further discussion.”27 The source of the court’s authority in Mount Laurel is unclear. The legislature, representing the state as a whole, accountable to the voters, by definition, provides for the general welfare of the state. A court, on the other hand, regulating in the name of the general welfare, without statutory or specific constitutional authority, has “hardly any limit but the sky,”28
Mount Laurel was a watershed in judicial activism. On the other hand, given the history of the state with its tradition voting by the land and a “legislature so full of former municipal and county officials,”29 the court filled in a vacuum of neglect. Framed against this historic background, the New Jersey Supreme Court entered the “rough and tumble” of educational reform, and led the nation in transforming education in the cities. Unlike the fantasy of general welfare in the Mount Laurel decision, the New Jersey Supreme Court in Robinson v. Cahill30 tackled the problem of neglect of the cities and found the proper provision of the state constitution that would revolutionize educational reform in America.