New Jersey’s long history of trouncing New York at the Supreme Court

I was born and raised in New Jersey, and I live there now (not off of any exit, thank you very much). And, although I resided in the Big Apple for many years, I will always be a Jersey boy. Even the most passionate New Jerseyan, however, may be unaware of the long history of legal battles between their home state and New York, several of which have taken place before the Supreme Court. In this article, I explore the most important of these cases and what, exactly, can be learned from New York’s bullying of its kindly neighbor.  

1831: Who owns what, part I

New Jersey and New York first came to the Supreme Court nearly two centuries ago. This legal dispute was a long time coming. Following the onset of British rule in 1664, the Province of New Jersey was originally recognized as a distinct territory in a land grant from the Duke of York to two of his close confidantes. In carving out the states’ respective boundaries, New Jersey’s domain was described as “westward of Long Island, and [Manhattan] Island and … part by Hudson’s river.” Unfortunately, no one had the foggiest idea what “part by Hudson’s river” meant.

In 1829, having been unable to settle their border disputes through political means, New Jersey submitted a legal bill against New York “for the purpose of ascertaining and settling the boundary between the two states,” and it subpoenaed the Empire State’s governor and attorney general.

New York had no particular interest in playing nice, however: These officials refused to answer the subpoena, forcing New Jersey to try and enforce it in court. Because the Supreme Court has original jurisdiction over disputes between the states, this case went directly to the justices.

Chief Justice John Marshall himself delivered the opinion of the court. Marshall first recognized that New Jersey had properly served its subpoena. He then determined that, because New York had failed to respond, its neighbor could proceed with its case ex parte, or without New York’s presence. Marshall bluntly warned that if New York still refused to act after being served with a copy of an order stating that New Jersey had a right to have its case go forward even without New York, the court would “proceed to a final hearing” regarding New Jersey’s territorial claims “and a decision thereof.”

Likely spurred by the court’s decision, the states reached an agreement over their boundary lines in 1833 (which was ratified by Congress the following year). New Jersey subsequently dropped its suit, apparently assuming (incorrectly) that New York could be trusted.

1921: The sewage case [insert Jersey joke]

Remarkably, the two states had no other fights before the Supreme Court for nearly a century. But as the Roaring Twenties began, this détente came to a close over something slimy. Specifically, New York claimed that New Jersey had been releasing noxious sewage into New York Harbor, creating a public nuisance that resulted in “grave injury to the health, to the property, and to the commercial welfare of the people of the State and City of New York.”

Admittedly, that sounds quite bad. But in a unanimous opinion by Justice John Hessin Clarke, the court exposed the flimsiness of New York’s claims. Specifically, Clarke pointed out that: (1) New Jersey had entered into a compact agreeing to mitigate the sewage’s environmental harms, and (2) New York had failed to demonstrate that this agreement was proving inadequate. Or, in the lovely words of the court: “Considering all of this evidence … we must conclude that the complainants have failed to show by the convincing evidence which the law requires that the sewage which the defendants intend to discharge into Upper New York Bay … would so corrupt the water of the bay as to create a public nuisance.”

In the end, Clarke advised the parties to do what (presumably) New York should have done in the first place: try and work things out.

1931: Diverting water

The next Supreme Court battle between New York and New Jersey took place only a decade later. And here, it was New Jersey who (rightly) claimed to have been wronged.

The trouble began a few years earlier, when New York sought to increase the water supply to New York City. To do so, the Empire State proposed to divert large amounts of water from tributaries of the Delaware River. Unsurprisingly, this not only affected the flow of the “Lifeblood of the Northeast,” but potentially altered the water supply to New Jersey residents. New Jersey (naturally) demanded that New York refrain from taking such measures, New York (predictably) thought otherwise, and off to court they went.  

In a unanimous decision, Justice Oliver Wendell Holmes attempted to split the difference. First, Holmes allowed New York to proceed with its plan, although he limited the amount of water that it could divert. Second, Holmes made this move subject to several conditions, including that New York set up a sewage treatment plant. Finally, Holmes gave New Jersey (and Pennsylvania, which had also joined the case) the right to inspect the relevant dams, reservoirs, and other structures so as to make sure New York was not diverting water beyond its allocated amount. (New Jersey graciously agreed to increase the amount of water that New York could divert in a 1954 consent decree.) 

The bottom line: While not a complete victory for New Jersey, the court at least recognized that New York could not be trusted to police itself.

1998: Who owns what, part II

Near the end of the last millennium, New Jersey and New York engaged in perhaps their most fraught legal battle: the rumble over Ellis Island. And although Jersey was not granted the Statue of Liberty (which, to be fair, was not in play), this round ended in a resounding victory for the Garden State.  

Before getting to the good stuff, however, let’s backtrack a little. As described earlier, at New Jersey’s inception, its border with New York was poorly defined. This changed in 1833, when the two states agreed upon a boundary line set in the middle of the Hudson River. Involved in these negotiations was the status of Ellis Island, which lies in the Hudson River between the two states. Specifically, the states agreed that New York would maintain jurisdiction over the island, and New Jersey would have sovereignty over the land surrounding it.

Although New York had jurisdiction over Ellis Island, the state had already conveyed ownership of it to the federal government in 1808 for a whopping $10,000 ($256,387.30 today!). On Jan. 1, 1892, the U.S. government began using the island as an immigration station, and as the flow of immigrants dramatically expanded, so did the need for more land. Accordingly, the feds engaged in a series of extensive land reclamation projects, eventually increasing the size of the island to around 27 acres.

On Nov. 12, 1954, Ellis Island ceased operating as an immigration facility (having served as a detention and deportation center from the 1930s onward). That led to a squabble between New York and New Jersey over who, exactly, owned all of that extra land filled in by the U.S. government – now comprising roughly 83% of the island.

Following years of hostilities, New Jersey finally took the initiative, and in 1993 asked the Supreme Court to settle this question. The case first went before a special master, as original jurisdiction cases often do, eventually landing on the court’s docket in the 1997-98 term.

In a 6-3 decision written by Justice David Souter, the majority held that New Jersey had jurisdiction over the artificially created land around Ellis Island. (Disappointingly, the only justice from New Jersey at the time, Antonin Scalia, dissented.) According to Souter, New York had already conceded “that at the time of the [1833 agreement] the submerged land around the Island was under the sovereign authority” of the Garden State; since the reclaimed land was built upon that, New Jersey thus naturally held sovereignty over that land as well. The upshot: New Jersey would receive some small sales tax revenue and control over possible development plans for the island … at the discretion of the federal government.

Unsurprisingly, both states had something to say about the court’s decision. Then-New Jersey Gov. Christine Todd Whitman celebrated it, remarking that the court had provided a “formal recognition of New Jersey’s part in history,” and that the opinion reflected the state’s “wonderful [immigrant] tradition.”

Characteristically for New York, Rudolph Giuliani – then the mayor of New York City –  decried the decision as “fix[ed],” and complained that his grandfather surely did not think of himself as emigrating to New Jersey. As the kids say, too bad, so sad.

2023: The Empire (State) strikes back

It may be hard to believe that New York could ever recover from its humiliating defeat with regard to Ellis Island. But if there’s one thing the Empire State can be relied on for, it’s failing to learn from its past mistakes. So it was that, only two years ago, New York marched once more into the hollowed halls of One First Street.

This latest legal battle was the product of the Mafia. In the 1950s, New Jersey and New York had sought to address a scourge on their shared waterfront: labor racketeering. To do so, they had signed a contract in 1953 establishing the Waterfront Commission of New York Harbor, which served as a bistate police agency set up to investigate and combat organized crime.  

Over the following decades, the presence of organized crime waned significantly on the waterfront. In response, New Jersey determined that its resources would be better spent elsewhere than on the commission, and, in 2018, it passed legislation to exit the 1953 agreement. In a move impressive in its brazenness, New York claimed that New Jersey could not “unilaterally withdraw” from this contract.

In a unanimous opinion consisting of a mere nine pages, the court found otherwise. Justice Brett Kavanaugh explained that the states’ agreement had only contemplated performance for an “indefinite time,” which was best understood as being “terminable at the will of either party.” But this wasn’t all: according to Kavanaugh, the very idea of state sovereignty “support[ed] New Jersey’s position,” which New York was (once again) attempting to repudiate.  As SCOTUSblog’s own Ronald Mann said at the time, “[o]ccasionally – not all that often, but sometimes – the Supreme Court faces a really easy case with an obvious answer. New York v New Jersey [was] one of those cases.”

Conclusion

So what can we conclude from all this? First, certain state stereotypes – at least concerning sewage, landfills, and organized crime – may have some truth to them. Second, it is important for neighbors to have contracts – even if one of those neighbors continually stretches these to the breaking point. And finally, sometimes the good guy really does win  – sewage, landfills, organized crime, and all.