The Supreme Court appears willing to let New Jersey unilaterally exit the Waterfront Commission of New York Harbor, a bistate police agency created to crack down on corruption immortalized in the Marlon Brando movie “On The Waterfront.”
All nine justices had tough questions for New York over the course of more than an hour of oral arguments on Wednesday. New York is trying to save the commission from New Jersey’s exit, a move that would effectively kill it. For New Jersey and the federal government, which is supporting New Jersey’s position, the justices seemed to mostly wonder how they could side with New Jersey without causing chaos and uncertainty for other multistate deals, like the one that created the Port Authority of New York and New Jersey.
At times, though, the justices answered their own questions. Chief Justice John Roberts told New York’s deputy solicitor general Judith Vale that it’s harder to “unscramble the eggs” at the Port Authority — which is tasked with overseeing bridges, tunnels, trains, docks and airports in both states — than it is to unwind the relatively small Waterfront Commission, an agency of about 70 people that licenses dock workers.
At another point, the chief justice seemed to reverse course and asked how easy it would truly be to divide up the Waterfront Commission’s buildings, bank accounts and investigations. Roberts wondered if it made sense to let New Jersey “just walk away.”
But the chief justice’s question was one of the few skeptical questions the justices had for New Jersey Solicitor General Jeremy Feigenbaum or assistant to federal solicitor general Austin Raynor.
The two states created the Waterfront Commission in 1953 to go after mobs and corrupt labor practices at the New York-New Jersey container port. The agreement between the two states, known as a compact, lacks language on what happens when either side wants to leave the commission, which New Jersey now wants to do. Disputes between states head straight to the high court.
The shipping industry, the powerful union that represents dock workers and nearly every New Jersey politician — including current Democratic Gov. Phil Murphy — all argue the commission has outlived its useful life by choking off harbor business and causing labor shortages. They argue the commission does more to keep alive old and outdated stereotypes of violent thuggery than it does to actually clean up the port.
New York has warned New Jersey is heading down a path that would invite violence and enable corruption by threatening to return the waterfront to the dark ways of the past and would worsen conditions at the port, creating yet another crisis in the American supply chain.
What the justices asked
In other questions Wednesday, the justices mostly seemed to be checking to see how they could side with New Jersey without affecting multistate deals setting boundary lines or dividing up water rights.
Justice Amy Coney Barrett said water rights were like property rights — you can’t sell a house then take it back — and those disputes could be distinguished from New Jersey and New York’s dispute, which involves continuing performance by each state of certain tasks, like licensing workers.
She and other justices kept turning back to basics of contract law: Unless an agreement says how it will end, one party can end it.
Justice Sonia Sotomayor kept saying she wanted to find the “simplest rule” for dealing with such disputes and said it “doesn’t make any sense” to assume one state should be able to hold another to an agreement like this forever.
Justice Samuel Alito likewise wondered what an “extraordinary thing” it would be to allow one state to lock another into an agreement like this against the other state’s will.
Justice Ketanji Brown Jackson also wondered if simple rules of basic contract law would allow the court to side with New Jersey without creating complications in other cases that reach the court — especially water rights cases, some of which have consumed the court’s attention for decades.
New York’s Vale said the commission remains vital and the states even modified the agreement in 2006, an indication they believed the problems it was meant to solve — creating a fair way to license workers and keep crime off the waterfront — remained a problem.
The case reached the court last spring, just as New Jersey was finalizing long-awaited plans to exit the commission thanks to a law former Republican Gov. Chris Christie signed on his last day in office after having vetoed a previous version of it. Under the 2018 law, the state would quit the commission and put the New Jersey State Police in charge of policing the waterfront.
New York Gov. Kathy Hochul surprised Murphy when she decided to sue to save the commission. Not only that, but New York began a bitter fight that drew on history — some would say stereotypes — of organized crime in New Jersey.
However, the mob was barely mentioned Wednesday and debates about how much crime there is doesn’t seem likely to play into the justices’ ultimate decision. Unlike other cases, where facts are in dispute, the court didn’t appoint a special master to try to get to the bottom of that argument. Instead, the justices are expected to decide by interpreting the decades-old agreement that formed the commission.
This isn’t the first time the high court has been asked to consider the issue. A previous case in lower courts held up New Jersey’s exit for several years.
In late 2021, the court handed New Jersey a victory by declining to hear an appeal of a lower court ruling that sided with New Jersey’s argument that the commission didn’t have standing to sue the state to save itself. At the time, New York was still on the sidelines but everyone agreed New York would have standing if it wanted to take New Jersey to court. So the court’s decision not to hear the previous case intensified the standoff between New York and New Jersey that led to the case justices now must decide.
A ruling is expected by the end of the court’s term in June.
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