Using The Law: The Exercise of Judicial Power

using the law, State v. Lund, 119 N.J. 35 (1990), Supreme Court of New Jersey, New Jersey Constitution, Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County, criminal defense, drunk driving, traffic ticket, juvenile, attorney, lawyerI have blogged about New Jersey v. T.L.O.1, Michigan v. Long2, and State of New Jersey v. Lund.3 Those blog posts explained the holding and reasoning of the majority in each case. This post, however, will go to the heart of judicial power: using the law. Nowadays this issue seems to be especially important. Indeed, the news extensively covered one of President Trump’s executive orders banning Muslims from entering the United States. And after Trump criticized a judge for blocking the order, some people defended that judge and the judiciary as an independent branch of government.

Known as “Separation of Powers” doctrine, the Constitution divides the branches of our federal government and the power each exercises. Nevertheless, these critiques placed too much emphasis on separation with little to no understanding of power. To the contrary, judges exercise power when they use the law to go where they want, irrespective of what the public might consider right or moral. And it is nothing like the exercise of legislative power.

Using The Law

In State v. Lund, New Jersey Supreme Court Justice Stewart Pollock concurred with the result reached by the court majority. But his reasoning leaves more questions than it answers.

For example, in comparing the majority and dissenting opinions, Justice Pollock observed how the differing approaches illustrated the unavoidable uncertainty of relying solely on federal law to resolve search and seizure cases. But this begs the following questions:

  • How many, if any, federal court judges expressed uncertainty about Fourth Amendment law?
  • Was Justice Pollock uncertain in his decision to concur with the Court majority?
  • Is there any panel of judges that will agree about everything, or even most things?
  • Is the Fourth Amendment unique in this respect in comparison to the myriad legal issues courts adjudicate?
  • Didn’t Justice Pollack himself write separately from the court majority in this case?

Based on how many vehicle searches take place in New Jersey, Justice Pollock recognized the importance of this issue for not only the suspects, the police, and the public, but also for the administration of justice (which of course means the courts).

  • Which group’s interest is likely to carry the greatest weight for a Supreme Court Justice?
  • Using common sense, can you rule out the importance of the other parties to a Supreme Court Justice?

Justice Pollock criticized the Court majority for failing to address the defendant’s points under article 1, paragraph 7 of the New Jersey Constitution in addition to its Fourth Amendment advocacy. Additionally, Justice Pollock cited sweeping language about the importance of developing State Law to preclude SCOTUS review.

  • Why did Justice Pollock fail to offer his legal analysis under article 1, paragraph 7?
  • Shouldn’t Justice Pollock offer this independent legal analysis based on his criticism of the majority?

The Crux of Judicial Power

Intentionally or not, it seems to me Justice Pollock answered all these questions when he drew attention to New Jersey v. T.L.O. Justice Pollock proudly pointed out how SCOTUS acknowledged the similarity between the Fourth Amendment reasonableness under all the circumstances test with the New Jersey Supreme Court’s reasonable grounds test. Indeed, Justice Pollock joined with the majority in State ex rel. T.L.O.4 But he laments how the SCOTUS reversal resulted solely from the Court’s perception that New Jersey’s opinion reflected a somewhat crabbed notion of reasonableness.

Those five words must have reverberated uncomfortably for Justice Pollock. Notwithstanding the judiciary’s hierarchy, judges like to have the final word. They do not like to be appealed, and they certainly do not like to be reversed.

Anyone who has been in court knows judges are kings in their courtroom. They have the power to order parties to do things the parties most likely would not voluntarily do. And they have the power to punish the parties. Yes, it can be quite the power trip.

The Real Reason For Developing State Law

The law is not sacred. Developing state law provides a state court with the power to have the final word. Do not suppose it is for the benefit of the public. Likewise, do not believe they do it to provide the citizens with greater rights. And you are mistaken if you think it is because judges have soft sentiments for criminals. Additionally, it is not related to the needs of the police. Furthermore, it has nothing to do with the general concept of judicial economy.

Justice Pollock’s brief concurrence raises questions that speak volumes about the exercise of judicial power. Judges know about using the law to go where they want to go. It is an aspect of judicial power that most people simply fail to understand.


1 New Jersey v TLO, 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1984).

2 Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

3 State of New Jersey v. Lund, 119 N.J. 35 (1990).

4 State ex rel. T.L.O., 94 N.J. 331 (1983).

Gloucester County Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding trial advocacy. Call Now—(856) 812-0321.Follow