New Jersey Pipeline Ruling Shows Supreme Court Pragmatism


In a 5 to 4 decision that cut across ideological lines, the Supreme Court has ruled that the federal government may authorize a privately owned pipeline company, PennEast, to seize New Jersey land even over the objections of the state.

The majority opinion, written by Chief Justice John Roberts, was joined by liberal justices Stephen Breyer and Sonia Sotomayor and by conservative justices Samuel Alito and Brett Kavanaugh. Meanwhile, the dissent, by Justice Amy Coney Barrett, was joined by Justices Clarence Thomas and Neil Gorsuch — and by liberal Justice Elena Kagan.

On one level, the bizarre lineup shows that there are round cases that can’t be fit into a square ideological box. On a deeper level, a close analysis can suggest reasons why just about all the justices voted the way they did, with the possible exception of Alito, who is from New Jersey and voted against his home state.

To understand what’s going on, you have to start, as always, with the legal issue in play. In order for there to be new infrastructure such as pipelines, railroads and the like, the government has to seize some property by eminent domain. There’s basically no way around it. And when it comes to pipelines in particular, authority rests with the federal government, in an agency known as the Federal Energy Regulatory Commission, or FERC (pronounced the way it looks).

The way FERC enables the seizure of land to build pipelines is to authorize the private company that gets the rights to build the pipeline to seize the property. That system is put in place by federal statute. And the way the pipeline company seizes the property is through a lawsuit known as a condemnation action. The entity taking the property sues the entity that owns the property.

Most of the time, when a state or local government seizes private property by eminent domain, the government sues to condemn the property. But in this case, PennEast, the pipeline, was doing the suing. And one of the property owners was the state of New Jersey. So instead of the government suing a private citizen, this was a case of a private company suing a state.

Here’s where things get more complicated. It’s established by Supreme Court precedent that the federal government has the right to seize property owned by a state. But it is also the case that, ordinarily, under the 11th Amendment to the Constitution, which you’ve never heard of unless you went to law school — and even then only briefly at most — private parties can’t usually sue a state in federal court unless the state has agreed to the suit. The question before the Supreme Court was therefore whether PennEast could sue New Jersey to seize its property.

The pragmatic answer is obviously yes. The federal government can’t be bothered to do the work of seizing all the property needed for every pipeline. It needs to assign that responsibility to the pipeline company. And if the federal government has the inherent authority to sue a state and take its property by eminent domain, it should pragmatically be able to assign that power to a private party.

That pragmatic position explains why the majority reached the conclusion it did. Or at least that’s what Barrett’s dissent said. She claimed the majority’s view “seems to be animated by pragmatic concerns.” And she meant it as an insult.

Barrett’s dissent pointed out that the majority could not cite any cases in which a private party sued a state under eminent domain principles. She scoffed at the majority’s claim that the “plan” of the 1787 Constitutional Convention logically entailed the idea that states would have to be subject to such private suits if authorized by the federal government.

Her whole point was that legal formalities have to be respected. The federal government could seize the property itself and then give it to the pipeline. But it lacked the power to enable private parties to sue a state in eminent domain.

It’s easy to see why Thomas and Gorsuch joined Barrett’s opinion. It construed the power of the federal government narrowly and upheld states’ rights. It’s a puzzle why Kagan, ordinarily highly pragmatic, joined it.

That puzzle can be explained by first noting that most surprising vote on the majority side was Alito’s. Roberts favors decisions that don’t upset the apple cart of ordinary governmental practice, so he was presumably glad to vote that FERC’s methodology is fine. Breyer is the pragmatist’s pragmatist, so was definitely going to vote for allowing the suits. As a liberal, Sotomayor would instinctively have sided with the federal government against the states.

The strange vote is that of Alito, who would usually vote with the conservatives and in favor of states’ rights.

The way to explain Kagan’s vote is that, once Alito had provided a fifth vote for the pragmatic result, she could take the opportunity to join an opinion written by Barrett, the court’s newest member.

Kagan is a brilliant small group politician. She knows the value of building alliances, however fleeting. To join a Barrett opinion where there were no consequences is a classic Kagan way of showing Barrett that she can be open-minded and non-ideological — and hinting that Barrett should be the same way.

As for Alito, explaining his vote is a bit harder. But we do know that Alito is unsympathetic to the “let the chips fall where they may” viewpoint long associated with Thomas and now very much embraced by Gorsuch, most notably in his gay and trans rights opinion last year.

Alito may simply have been unmoved by the extreme formalism of Barrett’s opinion. Again, he might just be angry at his home state of New Jersey for trying to block the pipeline from being built in the first place.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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