At the end of our recent editorial on our Supreme Court’s decision to review a pension forfeiture as an excessive fine under both the federal and state constitutions, “In Defining ‘Excessive’ Fine, Proportionality Should Have Many Dimensions,” 226 N.J.L.J. 2798 (Nov. 9, 2020), we urged the court to resolve the matter under the New Jersey Constitution. We opined that our court might render a more humane decision on excessive fines than SCOTUS would under the Eighth Amendment.
Another way to describe our suggestion would be that our court might render a more “state-centered” decision. Beyond what any of us think about the currently-constituted court, we have known for decades that when SCOTUS decides cases challenging state laws under the federal Bill of Rights (Incorporated through the 14th Amendment) it often considers, either explicitly or implicitly, the impact of a rights-recognizing decision on the diverse 50 states’ legal systems (federalism concerns). One scholar called this the “under-enforcement thesis” and federalism “strategic concerns.” “Least common denominator” is sometimes used. There are no such concerns when the court considers rights claims against the federal government, a single jurisdiction.
