Justice Thomas’ Waterfront Wisdom

Only one justice on the Supreme Court seems to grasp the full import of the case of the Waterfront Commission of New York Harbor that is now before the nine, and the justice is — you guessed it — Clarence Thomas. He pointed out in today’s arguments that while New Jersey may want to withdraw from the compact, an interstate compact is a construction of federal law and New Jersey’s change of heart is not the only consideration.No one, though, advanced the solution for which these columns have been plumping — namely that New Jersey, the unhappy party, be permitted to withdraw from the compact while the commission be allowed to remain in existence and New York authorized to continue its operations policing the docks and fighting criminality on both sides of the Hudson. For that, it seems, the Supreme Court would have to settle this matter sua sponte.The commission was formed as a bi-state agency in 1953 to combat the corruption that prevailed at New York Harbor. Congress acted after a Pulitzer-prize winning series of 24 stories in the Sun by Malcolm Johnson. That was in 1948. The current dispute arose over New Jersey’s attempt to leave the commission it co-founded, which would shut down the agency and, as the New York Post puts it, “hand the ports over to the mob.”Justice Thomas seems to realize that nothing about the commission exists without the congressional okay. From where we sit, that includes New Jersey’s impulse to quit. Article One, Section Ten of the Constitution bars the states from infringing on federal authority by trying to, say, “coin Money,” “grant any Title of Nobility” — or, absent approval by Congress, “enter into any Agreement or Compact with another State.” After the catalog of horrors chronicled by Johnson in the Sun — “thievery and skulduggery,” as a 1948 Sun editorial described it, and a “reign of lawlessness” on the docks — the Commission was formed without a thought of ever ceasing operations. Congress approved the compact with the option for amendment by the agreement of both states, but no means of termination. That ambiguity was addressed at length in arguments before the Nine.“Do you understand ordinary contract principles to cut against you?” Justice Elena Kagan asked New York’s lawyer, defending the commission. Justice Kagan noted when “there’s a contract with continuing obligations on both sides; that means one party could walk away.” New York’s lawyer, battered by queries on this head, said interstate compacts should be construed in a different light. It wasn’t clear she managed to convince the robed sages.In its prior court filings, the Empire State decried New Jersey’s drive to terminate the agency as a “violation of federal law.” That recalls The Great Scalia’s understanding, in a quarrel between North Carolina and Alabama, that “an interstate compact is not just a contract; it is a federal statute enacted by Congress.” Such clarity of legal thought was absent from the argument advanced by New York today. It was Justice Thomas who broached it. He pressed questions for both New York and New Jersey about “the constitutional requirement that Congress give its consent to this compact,” asking what role “should that play in our analysis?” New York’s lawyer did not rise to the rhetorical occasion here by offering a full-throated defense of the compact as a federal law, merely noting “Congress did specifically reserve the power to repeal the compact or its approval, if it wanted to.” New Jersey reckoned Congress’ concern was “to make sure that compacts don’t become aggrandizing vis-à-vis the federal government,” and that is “not a fear that anyone would have to have.” This ignores the risks to the economy, and public safety, that Congress took into account when it approved the Waterfront Commission. All the more reason to let New Jersey go, so New York can enforce the law where New Jersey lacks the gumption.

Justice Thomas’ Waterfront Wisdom

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