ARGUMENT ANALYSIS

Justices dubious of New York’s efforts to keep New Jersey in waterfront-safety commission

If the justices’ comments during Wednesday’s argument in New York v. New Jersey shed any light on whether New Jersey has a unilateral right to withdraw from the commission that regulates the Port of New York and New Jersey, New York is facing an uphill battle in convincing the justices that it can force New Jersey to remain in the commission.

As I explained in my preview, the compact that formed the commission says nothing about a right to withdraw. So the case asks the justices whether they should infer that New Jersey has a right to withdraw or instead infer that New York has a right to force New Jersey’s continued membership. Several of the justices seemed to think the answer was pretty clearly the former.

One problem for New York is the idea that the compact necessarily infringes on New Jersey’s core sovereignty because it involves joint criminal and regulatory authority over activities at the port. Several of the justices seemed to find that problem devastating for New York’s position. Justice Samuel Alito characterized New York’s “argument [that New Jersey agreed] to surrender this sovereign authority perpetually” as “an extraordinary thing”; Justice Elena Kagan found it “a kind of weird thing,” and Justice Brett Kavanaugh called it “a big deal.”

Their responses to the problem differed in some ways. Alito, Kavanaugh, and Justice Sonia Sotomayor at various points suggested a presumption against a state having perpetually parted with sovereign authority. Kagan, perhaps with a different focus, suggested that the court interpret the compact under standard rules of contract interpretation – and extracted a concession from New York’s counsel (Judith Vale) that those rules would require a ruling in favor of New Jersey. But no justice suggested that the answer is to hold New Jersey to the compact until New York agrees she can leave.

Another problem is the perception that New York and New Jersey intended that the compact would be temporary. Justice Ketanji Brown Jackson walked Vale through a historical record indicating that the compact was “silent” about withdrawal because the states were “worried about signaling to the mob bosses that they would be leaving.” Jackson reasoned from that evidence that she shouldn’t “draw the inference that you want us to draw.” For Sotomayor, the evidence that “they didn’t intend this to be perpetual – Justice Jackson pointed out the reasons” was dispositive: “we have to be able to say [that] one party can’t keep the other on the hook forever.”

Perhaps the worst sign for New York was how much of the time New Jersey’s counsel (Jeremy Feigenbaum) spent handling questions about the best way for the justices to write an opinion in favor of New Jersey. Kagan, for example, was concerned about the possibility of “hard cases,” a “gray zone” where it might be difficult to distinguish between cases like this one (in which withdrawal should be permitted) and cases involving boundaries or water rights (in which the resolution should be perpetual). In the same vein, Justice Amy Coney Barrett spent a substantial amount of time trying to work out a formulation that would distinguish between this case and the case in which “I sell you my house, [so] I can’t come back later and say I want it back.”

Indeed, the argument of Austin Raynor (offering the support of the United States for New Jersey’s position) was almost entirely consumed with questions about how best to craft a narrow opinion in favor of New Jersey, ranging from how hard it would be to distinguish water-rights cases (not hard in his view), to the value of looking to rules of treaty interpretation (not much in his view) to relying on sovereignty instead of contract interpretation (he sees both as “perfectly fine”).

It would be an exaggeration to say that all of the justices signaled that they will vote for New Jersey. But only a slight one. If any argument this year has suggested a brief unanimous opinion, it would be this one.