In a Supreme Court hearing Wednesday that may bring back memories of the famous 1954 movie, On the Waterfront, the Justices will examine a constitutional idea that had its origins even before the Constitution existed.

The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov  To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt

Wednesday’s case:  New York v. New Jersey  Scheduled for 70 minutes, the hearing will begin at 10 a.m.

Background:  Not often in the Supreme Court’s work, it uses a power given to it by the Constitution to act as a combined trial court/appeals court/final court of review.  That’s the Court’s authority under Article III to be the sole decider of what the basic document refers to as “Original” cases.  Mostly, those disputes arise between two or more state governments.

The Court will be employing that power on Wednesday when it hears a case that recalls the pre-Constitution days when the individual states were almost completely independent of each other, as if they were sovereign nations.  (The word “sovereign” derives from the 13^th Century French word souverain, meaning “superior, ruler, one with power over another.”)  Because that system among the states did not work out well in operation, under the old Articles of Confederation, the U.S. Constitution was written.

The Articles of Confederation included a provision that the states could negotiate with each other and, perhaps, come to an agreement about how to settle a dispute between them; often, that was a dispute about where a state boundary was to be drawn.  The “sovereign” colonies had an appetite to expand their territories, and that led to clashes.  The Articles said that Congress should approve of such deals, but that was sometimes ignored.

So, when a new Constitution was drafted in Philadelphia in 1787, the delegates inserted into Article I (defining the powers of the new Congress) a section that explicitly mandated congressional approval of such “compacts.”  It says simply: “No state shall, without the consent of Congress, enter into any agreement or compact with another state…”  (That was adopted, historians say, as part of the Founders’ desire to invest the new national government with powers sufficient to make the Union function properly.)

One basic understanding of that provision is that each state involved in such a partnership gives up some part of its powers – its sovereingty – in order to enter and carry out a joint agreement. This case involves the most fundamental aspect of states’ sovereignty – their power to protect their people from crime.

This case between two neighboring states boils down to this: can one state take back its sovereignty by withdrawing from a compact, even after Congress wrote that compact into binding federal law?

This case also has a feature quite unusual for Supreme Court disputes: the problem that led to the legal controversy was famously portrayed by Hollywood.  The rampant crime and corruption on the docks in New York harbor was the theme of the 1954 film, On the Waterfront.  Marlon Brando and a host of other stellar actors took home batches of awards, including Oscars.

The facts of this case:  New York harbor lies on the border between New York and New Jersey, so those states formed a compact in 1953 to try to deal together with the problem.

The situation on the docks was, literally, a daily crime scene.  Each workday, dockworkers assembled in “shape-ups” to compete for work loading and unloading ships.  If they got work, they had to pay “kickbacks” to labor union bosses.  The union was dominated by racketeers and petty criminals.  If workers needed money to pay their bills, the docks had their own “loan sharks” who commanded high interest and onerous terms.  Assaults were commonplace, and so was thievery of cargo.

To try to restore some order on the docks, the two states in August 1953 created the Waterfront Commission Compact.  A Waterfront Commission of New York Harbor was set up, assigned to use the states combined criminal laws and general legislation on the docks.

The agency has two commissioners, one named by each governor. A provision of the Compact required approval of both commissioners for any amendment.

The commission issued regulations to govern labor relations and business operations on the docks.  Dockside businesses are charged fees to pay for the agency’s work.  Each state’s legislature has power to pass laws to govern its operations.  Congress approved the Compact, as the Constitution requires.  Of significance for this case, the Compact has no provision for either state to withdraw from the Compact.

In 2018, New Jersey’s legislature passed a law to withdraw, declaring that the Commission no longer was serving the state’s needs and was, itself, “tainted by corruption.”  The legislature also said the agency was exercising powers it did not have.  New Jersey declared that its own State Police could manage problems on the New Jersey side of the docks.  It demanded the return of funds “applicable” to New Jersey.

That led the Commission to sue New Jersey in federal court, seeking to block its withdrawal.  A federal trial judge did so, ruling that the withdrawal was an amendment of the Compact not agreed to by New York.  A federal appeals court, however, ruled that New Jersey could not be sued because it had “sovereign immunity.”  The Supreme Court in 2021 refused to hear an appeal by New York.

New Jersey then began the process of withdrawal, leading New York to invoke the special constitutional authority of the Supreme Court to decide disputes between states.  At New York’s request, the Justices temporarily blocked the withdrawal and agreed to rule.

Most of the times that the Supreme Court takes on such a dispute, it will assign a “Special Master” to gather the facts and recommend a decision.  However, this time, the two states asked the Court to proceed on its own, saying there were only legal questions at stake and the Court should answer them.

The Biden Administration’s Justice Department is taking part in the case, siding with New Jersey.  The state had the power to withdraw unilaterally in the exercise of its own state sovereignty, the Department argued.  It also stressed that, unlike some other interstate compacts, this one says nothing about that issue.

New York is raising a host of legal and constitutional challenges, including a claim that New Jersey had broken the two states’ contract on its terms and in violation of the constitutional obligation to honor contracts, that Congress’ approval of the Compact makes it binding national law under the Constitution’s Supremacy Clause, that states have no right as sovereigns to withdraw from compacts, and that the history of compacts in the U.S. as well as the terms of this Compact do not support unilateral withdrawal.

The question before the Court:  Does the Constitution forbid a state from withdrawing unilaterally from an interstate compact, after the compact has been approved by Congress?

Significance:   America has a long and fascinating history surrounding the core constitutional question: where does the sovereign power reside in a government?

By breaking away from England in 1776, the American colonies cast off the sovereign power over them of the King and Parliament and, by the success of America’s move to independence, it began the noble experiment that made the people themselves the sovereign.

That’s why the Constitution was ordained by “We the People.”  And the Constitution arranges for the people to delegate their sovereign authority temporarily to their elected governments.  They can always reclaim it by insisting upon amendments to the basic document.

In modern times, the Supreme Court has recognized a kind of “dual sovereignty” in government – the federal government as national sovereign, and state governments having sovereignty within their borders.  State sovereignty, though, has to yield to the national government when policies are in conflict (that is required by the Supremacy Clause of Article VI).

This case will give the Court the opportunity to develop further the concept of state sovereignty when two states decide to yield that authority to a new, joint entity.  As a Court dominated by its six conservative Justices, this Court is acutely sensitive to states’ rights and may well exhibit an unwillingness to keep states involuntarily in an ongoing compact that involves – at least to a degree – the forfeiture of their basic right to govern themselves.

The legal briefs filed in the case give the Justices a wide range of options, ranging from the suggestion of six states that the states should almost never be found to have forfeited their sovereignty (especially their power over criminal law enforcement) to an argument by one state (Oregon) that respecting an obligation to stay in a compact enhances sovereignty rather than reducing it.  Representatives of a group of other existing interstate compacts urged the Court to rule that, if a compact is silent on the withdrawal issue, there can be no right for one state to withdraw on its own.

This case will complete the Court’s hearing schedule until the March sitting, which begins on March 20.