Bonus 15: Where is Ellis Island?

Kicking off a new bonus feature, the first review of a favorite opinion of mine by a former Justice involves a trick question answered in 1998 by Justice Souter: In which state is Ellis Island?

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of Thursday’s content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t yet will consider a paid subscription if your circumstances permit:

One of the central distinctions between the substance of Monday’s free issues and that of Thursday’s bonus content is the personalization of the latter. To that end, today begins a new subset of bonus content posts, in which I will, from time to time, write up my favorite opinion from a former Justice (I won’t get to all of them, with sincere apologies to the Justice Todd fans among you.)

This week’s version starts with Justice Souter, who served on the Court from 1990–2009. And with an honorable mention to his dissents in the Seminole Tribe and Alden state sovereign immunity cases, my vote for favorite Souter opinion involves a question of especial significance to me: Where is Ellis Island? The answer, it turns out, is complicated.

Throughout the seventeenth and eighteenth centuries, New Jersey and New York disagreed as to who owned the Hudson River and the islands contained therein—and where, exactly, the border between the jurisdictions rested along the lower Hudson and New York Harbor. In 1834, the states entered into a compact (ratified by Congress) that set the boundary line in the middle of the river, but gave all of the existing islands, even those on the New Jersey side of the line, to New York. One of those islands was known by the family name of its last private owners: Ellis Island. (Submerged lands on New Jersey’s side still belonged to New Jersey.)

At the time of the 1834 compact, Ellis Island measured a grand total of 2.74 acres. But the federal government, to which New York had ceded control of the island in 1808 (for purposes of coastal defense), gradually expanded it through aggressive land reclamation, especially between 1890 and 1934, when it became the United States’ primary immigration station. By 1934, Ellis Island contained 27.5 acres, more than 90% of which had been built on the submerged lands that originally belonged to New Jersey (in the below National Park Service diagram, the island as it stood in 1834 is in dark green):

You can see where this is going… After a 1992 Second Circuit decision held that even the reclaimed parts of the island belonged to New York (for tax purposes), New Jersey brought suit in the Supreme Court’s original jurisdiction, aiming to settle exactly how much of Ellis Island belonged to New York, and how much belonged to New Jersey. Following its usual procedure in such “original” cases, the Court appointed a special master (Cardozo Law Professor Paul Verkuil) to take evidence and issue a report, and the states’ “exceptions” to his report provided the basis for oral argument and the Court’s May 1998 decision.

By a 6-3 vote, the Court sided with New Jersey, holding that the Garden State rightfully had claim to those parts of Ellis Island that had been built on land that had been submerged at the time of the 1834 compact (and rejecting New York’s arguments about why that didn’t follow from the compact or, even if it did, had been overtaken by subsequent events). Thus, per Souter, some parts of present-day Ellis Island are in New York; and the rest of it is in New Jersey. (This also reminds me of the trick question about the northernmost neighborhood in Manhattan, which, it turns out, isn’t on Manhattan Island.)

Justice Souter wrote for the six-Justice majority. And although a decent chunk of his opinion is about the scintillating topic of the “common law doctrine of avulsion,” he couldn’t resist the opportunity to recount the full history (and importance) of Ellis Island. Part I(A) of his opinion, which takes up eight pages of the U.S. Reports, tells the story of how Ellis Island became the “golden door” to which Emma Lazarus referred in “The New Colossus,” and how it was the expansion of immigration (and of the facilities needed to process the influx of immigrants) that led the United States to expand the size of the island.

In all, 12 million immigrants passed through Ellis Island between 1892 and 1954, including all eight of my great-grandparents. How and why Ellis Island came to serve that role, and how and why there was no need to resolve which state could actually claim it until the late 1990s, are carefully and elegantly recounted in Souter’s opinion for the Court, which has, for all of those reasons, long been a personal favorite.

Of course, no one would suggest New Jersey v. New York is one of Justice Souter’s more important opinions. But that’s part of why I like it so much; in a case with very low stakes, Souter took the time to write a thorough, careful, and illuminating history of a place that had outsized significance in the lives of millions of immigrants to America and their families, even if he ruled against my native New York in the process. Take a read and see if you agree.

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Barring more breaking news between now and then, next Monday’s regular newsletter will use the student loan cases set for argument next week as a foil for looking at when states do (and should) have standing to challenge federal policies, and how quiet expansions in state standing in the lower courts have had a significant impact on the Supreme Court’s docket in recent years. More on all of that Monday.

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Have a great weekend, all!!