As mentioned in the boater’s rights blog, the New Jersey State Constitution provides the ceiling of our rights, while the United States Constitution provides the floor. Put another way, police in all 50 states cannot violate the rights protected by the federal constitution, while individual states are free to either lock-step with federal constitution case law or provide individual state citizens with even greater rights (but never less rights). Thankfully, New Jersey has a history that favors individual liberty over crime control. Therefore, our Supreme Court has not been afraid to occasionally go above and beyond the minimum of individual rights guaranteed federal constitution. This approach is consistent with Benjamin Franklin’s statement that ”Those Who Sacrifice Liberty For Security Deserve Neither.”With that in mind, it is imperative for a criminal defense attorney to stay on top the latest New Jersey state court opinions. But there is also value in reviewing the United State Supreme Court opinions. Oftentimes the United States Supreme Court addresses an issue that the New Jersey state courts have not yet addressed. Moreover, even a dissenting federal Supreme Court opinion, i.e. an opinion of the minority of Justices, becomes the inspiration for a subsequent New Jersey state court opinion.
Recently, I read Yates v. United States, decided on February 25, 2015. It was my first time reading an opinion from of our newest member of the United States Supreme Court, Justice Elena Kagan. I was struck not only by her beautiful writing style, but by how scathing her dissent was in the Yates case. She seemed to go out of her way to lambaste the concurring opinion of Justice Alito.
Justice Kagan’s dissent reminded me of the controversy surrounding Justice Alito’s confirmation hearing. In particular, I recall one of the U.S. Senators grilling him about a dissent that he authored as a federal appellate judge. In that case, Doe v. Groody, Alito opined that police officers were immune from civil liability after they conducted a warrantless strip search of a suspected drug dealer’s wife and ten year old daughter.