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Justices validate New Jersey’s decision to leave commission for Port of New York and New Jersey

Occasionally – not all that often, but sometimes – the Supreme Court faces a really easy case with an obvious answer. New York v New Jersey is one of those cases. Most cases that come to the court bring decent legal arguments on both sides, because most of the cases the court takes are cases in which lower courts have disagreed on the right answer to the question. Or they involve critical and highly contested questions of national import, on which reasonable minds can differ if only because the stakes are so high.

But none of that is true here. Because the case falls in the Supreme Court’s original jurisdiction, the lower appellate courts have had nothing to say about it. So why, you might ask, is the case in the Supreme Court at all? Because the Constitution sends disputes between states to the Supreme Court, and this is a dispute between New Jersey and New York over whether New Jersey unilaterally can withdraw from the two states’ bilateral commission that supervises law enforcement at the Port of New York and New Jersey. New Jersey wants to leave, while New York wants New Jersey to stay. My view of the briefs before the argument, as summarized in my preview, and my sense of the justices’ inclinations, as summarized in my post on the argument, was that this would be an easy win for New Jersey. Justice Brett Kavanaugh’s opinion for a unanimous court is just what I expected.

The opinion is succinct, less than nine pages, and treats the case as “straightforward.” Because the compact between the two states that formed the commission does not address either state’s right to withdraw, the court should resolve the case based on “background principles of contract law,” as it has resolved past questions about interstate compacts. The background contract rule here is easy for Kavanaugh to quote from a leading treatise: “[A] contract (like this Compact) that contemplates ‘continuing performance for an indefinite time is to be interpreted as stipulating only for performance terminable at the will of either party.’” Kavanaugh explains the point of the rule — specifically, that parties “need not continue performance after the contractual relationship has soured, or when the circumstances that originally motivated the agreement’s formation have changed.” Here, the port has changed markedly between the formation of the commission in the 1950s, when 70% of waterfront workers were in New York, and the present era, when more than 80% of work is on the New Jersey side.

Although that baseline principle of contract law probably was enough to decide the case, Kavanaugh offers two additional points in support of New Jersey’s position. First, he reasons, “[p]rinciples of state sovereignty likewise support New Jersey’s position … Here, the Compact involves the delegation of a fundamental aspect of a State’s sovereign power – [law enforcement] to a bistate agency.” Kavanaugh cannot credit the idea that sovereign states would “permanently give up … their authority to withdraw from the Compact and to exercise those sovereign police powers at the Port as each State sees fit.”

Finally, he points to “the fact that, as is undisputed, New York and New Jersey never intended for the Compact and Commission to operate forever.” For him, if “the States did not intend for the agreement to be perpetual, it would not make much sense to conclude that each State implicitly conferred on the other a perpetual veto of withdrawal.”

This decision does not resolve any grand issues of law or practice, and it will have little or no practical consequence on the ground, as New Jersey could have brought the commission to a standstill in any event by refusing to agree to a budget or approve further activities by the commission. It is unlikely to make waves even in the small pond of compact clause jurisprudence. The most that can be said, I think, is that the opinion brings a crisp and uncontested end to the dispute.

Recommended Citation: Ronald Mann, Justices validate New Jersey’s decision to leave commission for Port of New York and New Jersey, SCOTUSblog (Apr. 18, 2023, 5:33 PM),