The Supreme Court’s Original Jurisdiction [Update]

I find this interesting, and we shall no doubt soon see what the Court thinks on the matter.


Two Supreme Court Justices Are of the View the Court MUST Hear Cases Involving Disputes Between States — Are There Three Others?

By Shipwreckedcrew, RedState

Four years ago, Nebraska filed a motion in the Supreme Court seeking permission to file a complaint against Colorado over issues involving Colorado’s passage of legislation that legalized the recreational use of marijuana in contravention of federal law.  Nebraska alleged that its interests as a state were harmed by that legislation.

The Supreme Court denied the motion.

Justice Clarence Thomas dissented from the denial, and he was joined in his dissent by Justice Samuel Alito.

This is the precedent that is being widely cited as rendering the motion by Texas and 19 other states moot.

The Legal Argument


The first paragraph of Justice Thomas’ dissent read[s] as follows:

Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint.

As noted, by joining Justice Thomas’s dissent, Justice Alito signaled he agreed with Justice Thomas’s view on whether the Court must hear cases involving claims made by one state against another state.

Justice Thomas went on to explain his view:

Federal law is unambiguous: If there is a controversy between two States, this Court—and only this Court—has jurisdiction over it. Nothing in §1251(a) suggests that the Court can opt to decline jurisdiction over such a controversy. Context confirms that §1251(a) confers no such discretion. When Congress has chosen to give this Court discretion over its merits docket, it has done so clearly…. Compare §1251(a) (the Court “shall have” jurisdiction over controversies between States) with §1254(1) (cases in the courts of appeals “may be reviewed” by this Court by writ of certiorari) and §1257(a) (final judgments of state courts“may be reviewed” by this Court by writ of certiorari). The Court’s lack of discretion is confirmed by the fact that, unlike other matters within our original jurisdiction, our jurisdiction over controversies between States is exclusive…. If this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief. When presented with such a controversy, “[w]e have no more right to decline the exercise of jurisdiction which is given,than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J.).

Nonetheless, the Court has exercised discretion and declined to hear cases that fall within the terms of its original jurisdiction…. The Court has even exercised this discretion to decline cases where, as here, the dispute is between two States and thus falls within our exclusive jurisdiction…. The Court has concluded that its original jurisdiction is “obligatory only in appropriate cases” and has favored a “sparing use” of that jurisdiction…. The Court’s reasons for transforming its mandatory, original jurisdiction into discretionary jurisdiction have been rooted in policy considerations. The Court has, for example, cited its purported lack of “special competence in dealing with” many interstate disputes and emphasized its modern role “as an appellate tribunal.”…

I have previously applied the Court’s precedents taking this discretionary approach to our original jurisdiction…. I have also acknowledged that “sound reasons” support that approach…. Because our discretionary approach appears to be at odds with the statutory text, it bears reconsideration. Moreover, the “reasons” we have given to support the discretionary approach are policy judgments that are in conflict with the policy choices that Congress made in the statutory text specifying the Court’s original jurisdiction.

Now the Court has historically assumed powers unto itself not explicitly granted in the Constitution (Marbury v Madison) before, but in this case there is both Constitutional Language

Article III

Section 2…

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

[Emphasis added]

and Federal Legislation (cited by Shipwreckedcrew above) which support Justice Thomas’s dissent.

Court Membership


Chief Justice Roberts, and Justices Scalia, Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor were together in denying the motion.

Justices Scalia, Kennedy, and Ginsburg are no longer on the Court.

What is unknown on this day is[sic] the views of Justices Gorsuch, Kavanaugh, and Barrett on this key issue.

While it is true that Justices Gorsuch, Kavanaugh, and Barrett have not yet addressed this particular issue in their current roles, all are known to be fairly strict textualists.  As such, I am confident that the motion will be taken up and a trial will be held before the Supreme Court.

I offer no prediction on the outcome of that trial as much will depend on the cases made, and the lawyers who argue those cases.  Then again, Senator Cruz has an excellent record in his appearances before the Supreme Court.


Supreme Court denies motion by Texas.  Alito and Thomas dissent.

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot. Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

So much for my prescience.

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