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SCOTUS is Deciding New York v. New Jersey and For the First Time Ever, I Want Jersey to Win.



There are only two places to live in this world: New York and everywhere else. As a transplant who has been living in Everywhere Else, New Jersey for over two decades , I'm still holding fast to my roots. While there is plenty that is great about New Jersey, my New York usually emerges victorious in all Empire v. Garden battles. That's likely about to change up at the Supreme Court this term, and if I'm being honest, I think I'm siding with Jersey on this one.


To understand what's at stake, we have to go back to the days of corrupted longshoremen at the shoreline with Lady Liberty looking on as mafiosos walk the docks. If you're thinking On the Waterfront with Marlon Brando and Eva Marie Saint, you've got it right.


In the early 1950s, corruption at the docks of New York Harbor was rampant. To combat the problem, New York and New Jersey agreed via "interstate compact" (called the Waterfront Commission of New York Harbor) to create a bi-state agency that would regulate the Port of New York and New Jersey — today, the busiest port in the world.


Each state contributed personnel to the WCNYH and each state passed their own law enabling the agency to regulate. Now, though, New Jersey is over this arrangement. The Garden State has tried to withdraw from the WCNYH for years, arguing that its strict regulations unnecessarily stifle port commerce. New York, though, has opposed those efforts.


New York says that without the WCNYH, New York Harbor will become dangerously destabilized. It also says that it is illegal for New Jersey to unilaterally dissolve the commission without New York's permission. The original compact never mentioned termination, so New York contends that an end can only happen if both parties agree. If you're thinking this sounds like a looming divorce in which one party hasn't accepted what's going down, you're right.

To add more intrigue to the battle, the power dynamic has changed quite a bit over the years. During the 1950s, most of the port commerce occurred on the New York side of the port. Now, though, nearly 90% of the commerce occurs on the Jersey side — which certainly adds an interesting wrinkle to New York's quest to continue going halfsies on regulatory control.


On March 1, 2023, the Supreme Court heard oral arguments in the dispute— which was a kind of procedural novelty of its own. Typically, SCOTUS settles appeals that arise from the lower circuit courts after trials are conducted at federal district courts. New York v. New Jersey, though, was a rare original jurisdiction case for SCOTUS. Per the Constitution, the Supreme Court gets first crack as trier of law and finder of fact for any disputes between states themselves. So the justices are going to get all up in there with this case.


From the justices' comments at oral arguments, few if any appeared willing to side with New York. There was lots of talk about whether the compact between the states was more like a treaty between nations or more like a contract between parties — and the answer seemed to be "it's a little of this and a little of that." Regardless, the justices did not seem psyched to allow New York to force its neighbor to stay in the compact in perpetuity.


Though I'm far from a harbor expert, I can't help but think this case smacks of New York just being a little too New York-y. The Empire State is used to being dominant. The Statue of Liberty is synonymous with New York, despite Liberty Island being technically closer to New Jersey. The New York Giants and the New York Jets both play at New Jersey stadiums. Yet, if we're talking about the turnpike, toxic waste, or the Sopranos, New York has always been clear to distance itself from the brand.


Though I don't know what's to come for safety at the waterfront, I would wager that New Jersey will get its wish, be released from the joint commission, and go on its way independently. We'll just have to see how that turns out.







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