Today’s Transcripts
The transcript of today’s argument in Knight v. Commissioner of Internal Revenue (06-1286) is now available here.
The transcript of today’s argument in New Jersey v. Delaware (134 Original) is now available here.
Counsel for Deleware struggled mightily in identifying just what limitations Deleware could put on riparian rights. He finally explained, at the end of his argument time, that in his view Deleware can’t ban wharves not adjudged to be a nuisance, but has very broad police power to regulate what goes on inside them. It would seem that that distinction won’t hold for the court’s five conservatives and Justice Souter (assuming the quiet Justice Thomas doesn’t surprise anyone). Deleware likely pick up Justice Ginsburg and perhaps the vote of Justice Stevens. I have no idea at all where Justice Breyer is heading here. In any event, look for a majority of at least six justices to side with NJ here.
Comment by Jacob Berlove — November 27, 2007 @ 11:34 pm
Justice Breyer was recused, presumably because he owns BP stock. The docket states as follows:
Oct 15 2007 The Exceptions to the Report of the Special Master are set for oral argument in due course. Justice Breyer took no part in the consideration or decision of this case.
Thus, the Court cannot split 4-4 on this case, but will have to reach at least a 5-3 majority.
Comment by Andy Patterson — November 28, 2007 @ 10:08 am
Well, it wasn’t a slam dunk for Delaware like I thought it would be, they actually argued the text of the compact. I think the disconnect was that Delaware’s lawyer was taking a nuanced view of the interaction between constitutional, sovereign and riparian rights, while the Justices were just realizing they didn’t know what the bundle of sticks comprising riparian rights actually is. In the end, I think it will be that NJ controls the exercise of riparian rights by property owners whose property is in NJ (by NJ law between the high-water and low-water marks, by the compact riverward of the low-water mark)but that police power (e.g. over activities on wharves connected to the NJ side) belongs to Delaware within its borders — which I believe is what the Special Master found — and the decision will be 9-0 or 8-1 with Alito on NJ side.
Comment by Roger Friedman — November 28, 2007 @ 10:22 am
Now I can predict with 100% certainty Breyer’s vote. He will.. not vote, since he’s recused. No wonder the transcript doesn’t record any questions from him. (Hat tip: NYT)
Comment by Jacob Berlove — November 28, 2007 @ 12:29 pm