I Fought the Law

Supreme Court Comes Original

Over the past year, during my brief, glorious time on the payroll of the Federal Judiciary, I developed a somewhat unhealthy fascination with original Supreme Court jurisdiction. Which is why I was very excited about the case of New Jersey v. Delaware being argued this past week at the Supreme Court. Good old Article III gives the Supreme Court original jurisdiction over disputes between states, meaning that when New Jersey and Delaware got into a kerfuffle over the Delaware river, they got to take their gripes directly to the Supremes without wasting time at any District or Circuit Courts.

The New York Times covered the case here, summarizing both the dispute and the additional weirdnesses appurtenant thereto. The basic idea is that New Jersey wants to allow BP to build a natural gas plant on the New Jersey side of the Delaware River to bring a load of cash into the state, and Delaware isn't so keen on the idea on account of the Environment. Rather than settling their dispute through armed conflict between well-regulated militias like in the old days, the stately states asked the Justices to set things straight.

From my limited study of state-vs-state original cases, I've discovered that the binding authority can take strange forms. For example, in New Hampshire v. Maine, the Court's opinion cited a proclamation of King George. N.J. v. Del. doesn't seem to involve anything quite so archaic, though a 1905 compact between the two states regarding use of the river seems to be a key sticking point, as is a 1934 Supreme Court case that decided who owns various parts of the river.

Another fun wrinkle pointed out in the NYT article is the fact that Justice Breyer recused himself from the case because he owns stock in BP. This creates the possibility of a 4-4 tie in an original jurisdiction case, which has never happened. In that event the states will likely be forced to bust out their militias.

Finally, Justice Alito isn't very happy about having to hear the case. According to the wall Street Journal Law Blog, Justice Alito drew some laughs when he told the Delaware lawyer how silly his case is. Justice Alito, of course, was born and raised in New Jersey, which may, just may, be coloring his view of the case. But then again, he may also be expressing the John Roberts philosophy that the Supreme Court shouldn't hear any cases at all.

Posted by hb at December 1, 2007 12:05 PM