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The Statue of Liberty in New Jersey. (Photo: Tzido Sun/Shutterstock).

In U.S. Supreme Court, New Jersey beats New York

History shows Jersey prevails in top court fights with neighboring state

By David Wildstein, March 24 2022 11:16 am

New Jersey doesn’t file many lawsuits against New York, but when they do, they win.

That puts a little pressure on Gov. Phil Murphy and his administration as they prepare for battle against New York over the shutdown of the Waterfront Commission.

The last New Jersey v. New York case was settled by the U.S. Supreme Court in 1998 when the top court determined that about 83% of Ellis Island was in New Jersey.

In the 7-2 decision, Justice Ruth Bader Ginsburg, a former Rutgers-Newark law professor who lived in New York, sided with New Jersey.  Justice Antonin Scalia, who was born in Trenton, voted for New York.

New York lost a 1918 lawsuit they filed against New Jersey contesting the decision of Passaic Valley treated sewage to be discharged into New York Harbor.  New York believed the sewage issue violated an 1834 compact between the two states.

Former U.S. Supreme Court Justice Charles Evans Hughes argued the case for New York.  Hughes had served as New York’s governor before his appointment to the Court and was the 1916 Republican nominee for President.  He lost to Woodrow Wilson but carried Wilson’s home state of New Jersey by almost twelve percentage points.

New Jersey’s lawyer in that case was Robert McCarter, a former state attorney general – he succeeded his brother, Thomas, in that post – and was a founder of a major law firm now known as McCarter & English.

In 1929, New Jersey sued New York over their plan to divert water from the Delaware River to tributaries in New York.  That case got settled before it went to court.

But in 1931, with the settlement not working, a variation of that case made its way back to the U.S. Supreme Court.

New Jersey’s case was argued by former Senate President William Stevens (R-West Long Branch), who was serving as Attorney General of New Jersey – he had also run the Lindbergh kidnapping case – and former Assemblyman Duane Minard (R-Boonton), who was serving as a deputy state attorney general.

The Supreme Court decided the case in New Jersey’s favor, although the Chief Justice, Hughes, recused himself.

The two states had a Supreme Court faceoff in 1954 over the 1931 decision over water diversion.  The Court restrained some water diversions by New York City with some exceptions, including a proposed dam and reservoir in West Long Branch.

The U.S. Supreme Court went with New Jersey in an 1831 dispute over New York’s refusal to accept a subpoena.  Chief Justice John Marshall wrote the opinion.

Murphy would become the first New Jersey governor to lose a legal fight to New York, something that might put a little pressure on acting Attorney General Matt Platkin and Solicitor General Jeremy Feigenbaum.

The Ellis Island case pitted two Republican governors against each other: Christine Todd Whitman and George Pataki.

Alfred E. Smith was the governor of New York during the 1916 case, and Franklin D. Roosevelt held the post while the 1929 lawsuit was being fought.

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