Wednesday, April 28, 2021

Would Justices Alito and Thomas Have the Supreme Court Hear Minor State Law Cases?

by Michael C. Dorf

On Monday the Supreme Court denied leave to Texas to file a lawsuit against California. The suit sought to challenge California's refusal to fund or sponsor travel to states engaging in various forms of "discrimination against lesbian, gay, bisexual, and transgender people." Texas contended that in so doing, California violates the Privileges & Immunities Clause of Article IV, the dormant Commerce Clause, and the Fourteenth Amendment's Equal Protection Clause. These claims are highly dubious, given that states acting in their proprietary capacities have much greater freedom to act than when acting as sovereign regulators. Nonetheless, the Court's denial of leave occasioned a dissent by Justice Alito, joined by Justice Thomas.

That dissent expressed no view on the merits but instead repeated their previously expressed claim that the Supreme Court lacks discretion to decline to hear state-versus-state cases that fall within its original jurisdiction. As I'll explain, a version of the argument Justices Alito and Thomas may be making is terribly misguided on grounds that conservatives (and liberals and everyone in between) ought to find persuasive: if taken seriously it would bring to the Court cases it has no business adjudicating.

I'll begin by acknowledging that the Alito/Thomas view has something to recommend it as a matter of statutory interpretation. A federal statute gives the Supreme Court "original and exclusive jurisdiction of all controversies between two or more States." By vesting exclusive jurisdiction over state-versus-state cases in the Supreme Court, Justice Alito and Thomas say, Congress must have meant for such jurisdiction to be non-discretionary. Otherwise, we might have circumstances in which State A has a valid claim against State B but nowhere to bring it: an attempt to file in a state court or lower federal court would be impermissible as a violating the Supreme Court's exclusive jurisdiction, but the Supreme Court itself could simply exercise its discretion not to hear the case. Accordingly, I think there is a lot to be said for the Alito/Thomas position as a matter of statutory interpretation.  

Or rather, there would be, except that Congress itself pretty clearly is not bothered by the seeming anomaly. After all, as Justice Alito himself observes in Monday's dissent, the Court has considered itself free to decline to exercise original jurisdiction in state-versus-state cases for at least 45 years and arguably for over a century. The fact that Congress has made no effort to amend the original jurisdiction statute shows congressional acquiescence if not outright approval.

To be sure, the Court sometimes overrules a precedent construing a statute. Although stare decisis is supposed to be stronger in statutory than in constitutional cases (because statutes are easier to amend than the Constitution), it is not infinitely strong. Thus, notwithstanding congressional acquiescence, the Alito/Thomas view is plausible if confined to cases falling within the Court's exclusive original jurisdiction.

Yet there is language in the Alito dissent in Texas v. California and other cases suggesting that he and Justice Thomas think that: (a) the Court also lacks discretion to reject cases falling within the Court's statutory non-exclusive original jurisdiction; and perhaps even (b) that the Court thus lacks discretion to reject cases falling within the scope of original jurisdiction set out in the Constitution's Article III. That's highly problematic, because statutory non-exclusive original jurisdiction includes:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens. 
Subdivision (1) would include, say, an action by a high-ranking official of some foreign delegation to the UN suing her NYC dry cleaner under state law for damaging an article of clothing. And if the Constitution is the measure, then not only cases to which ambassadors, other public ministers, consults, or vice consuls are parties get swept in, but so do cases merely affecting such persons (because that's the Article III language). Maybe there was room on the Supreme Court's docket for such cases in 1789 (although I doubt it), but there is no reason for the Supreme Court to hear them today.

My criticism of the position taken by Justices Alito and Thomas--insofar as it extends beyond cases falling with the Supreme Court's statutorily exclusive jurisdiction over state-versus-state cases--is entirely non-ideological. Indeed, if anything, I'm criticizing them from their right, as it is typically conservatives who wish to recognize some power in the courts to decline jurisdiction to avoid opening the floodgates.

Finally, I'll add that in one respect, the Alito dissent in Texas v. California marks a positive development. Readers may recall that in December of last year, the Court rejected an original jurisdiction lawsuit by Texas suing Pennsylvania and alleging that the latter acted unconstitutionally by construing state law in a manner that permitted Pennsylvanians, especially Black Pennsylvanians, to vote for anyone other than Donald Trump. (That wasn't technically what the complaint said but that was its real import.) The Court rejected the filing "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." Justices Alito and Thomas, while making clear that they would not grant Texas its injunction against democracy, dissented from the standing holding. Justice Alito, joined by Justice Thomas, said that they continue to believe that the Court lacks "discretion to deny the filing of a bill of complaint in a case that falls within [its] original jurisdiction." Therefore, they would "grant the motion to file the bill of complaint . . . ."

So as of December, Justices Alito and Thomas thought that even if a state lacked Article III standing, the Court had to accept its original jurisdiction filing -- and presumably permit it to argue that it has Article III standing and then proceed to the merits. However, in Monday's Texas v. California dissent, they appeared to backtrack. In the text of the opinion, they approvingly describe the first 150 years of Supreme Court practice, during which, they say, the Court never refused to permit the filing of an original jurisdiction case. But they drop a footnote that says: "The Court did not accept every case filed during that period, of course—it rejected some for lack of standing and on account of other justiciability defects." In thus signaling approval of that practice, Justices Alito and Thomas appear to have backed off from their view that the Court may not even reject an original jurisdiction for lack of standing. A baby step to be sure, but one in the right direction.


Joe said...

It would interest me just what "some for lack of standing" covered.

It is my understanding that early on it was accepted that district court judges also had the power to hear disputes involving ambassadors and so forth -- that is, original jurisdiction in that sense was not exclusively in the hands of the Supreme Court.

I think Alito/Thomas, and this is covered in the dissent, has a somewhat stronger case on the constitutional front when dealing with disputes among states. Unlike some petty dispute involving an ambassador, the Supreme Court takes various state disputes, generally letting a special master deal with the details. Also, on the merits, the dispute here does not necessarily seem too trivial.

As a matter of statutory interpretation, it is very notable that Congress is able to "correct" the Supreme Court if it felt the Supreme Court's decades long practice here was problematic. I think A/T might be right here -- the states can be allowed to brief the case and so forth. If it is truly so very minor, the Supreme Court might then be able to not take the case (though even if they did take the case, they could after all just decide it summarily without much effort).

kotodama said...

A couple random thoughts, in another two-installment series:


Somewhat disagreeing with Joe (unfortunately), I don't see this dispute as particularly meritorious. In fact it seems downright frivolous. Taken on its own terms, the idea that TX *itself* has some kind of "rights" it could assert under P&I or EP is really preposterous. Only "citizens" and "persons" have those rights last I checked, unless those are what TX now claims to be. If so, that gives a whole new meaning to the "sovereign citizen" movement! On the DCC, maybe it’s a bit less clear, but I note that co-dissenter Thomas rejects the DCC wholesale. In a case not that long ago, he also denied that refusal to engage in economic activity even qualifies as regulable “commerce” itself. As I recall, in that same case Alito endorsed an opinion expressing a comparable sentiment. What seems clear though is that all TX’s claims lack even the slightest historical pedigree. Nor do they appear to at least have support in some oddball academic theory.

I’ll acknowledge that Alito admits the claims are “novel” and I’ll further concede that novelty alone isn’t always fatal to the merits (although my criticisms above go far beyond addressing just novelty). But by the same token, admitting novelty really undermines the case for *jurisdiction*. Alito seems to endorse TX’s argument that its dispute “is precisely the type … for which our exclusive original jurisdiction was designed.” I don’t see how that can possibly be right though, when in the same breath Alito concedes that TX’s claims have absolutely no grounding in tradition or history—to say nothing of the actual text of the Constitution. By way of contrast, the kinds of state/state original jurisdiction cases the Court has and continues to entertain are firmly grounded. For example, river and boundary disputes. In fact, the very case (and the cases it cites in turn) that TX relies on for discussion of a “casus belli” is such a river dispute. That makes sense too because economic sanctions as employed nowadays were barely a thing until well after the Founding. Even on its own terms, the argument is incoherent—sanctions are meant as an *alternative* to armed conflict. I suppose if TX *actually threatens* to make war on CA (which is a sickening and morbid suggestion on TX’s part), then yes, it would be good for the Court to take jurisdiction, but I’m not holding my breath on that. I completely reject so-called “originalism”, but I seriously doubt that an argument for jurisdiction over TX’s claims could be made under any past or current flavor of originalism. (In this have we finally discovered the elusive “originalismism”—originalism about original jurisdiction?!) Maybe that’s why it was convenient for Alito to write the opinion so Thomas didn’t have to struggle to make an originalism argument.

Alito’s analogy to foreign countries also falls flat. I’m no international relations expert, but I don’t think countries usually submit sanctions disputes to arbitration. (Maybe trade disputes, but that’s a very different and specialized area.) Certainly I don’t recall it happening over Apartheid, or with Russia or Iran. Why on earth would a country imposing sanctions even agree to arbitrate? That just destroys the leverage that make sanctions possible in the first place. As for “diplomacy,” I don’t see what’s preventing TX from giving that a try. Likewise for self-help, if it’s so inclined. Alito is also a fair weather friend when it comes to evidence of foreign practice. He likes it when it happens to support his case, like here, or in the census citizenship case, but not when it doesn’t, like in Glossip.

kotodama said...


Getting back to Prof. D.’s original (no pun) issues, the statutory construction point seems less clear to me. If you are a “textualist” (whatever that means), the statute doesn’t say one thing or another about discretion. And I’m not sure as a constitutional matter that Congress can impose mandatory jurisdiction of this kind, at least on an unwilling SCOTUS. That may run afoul of Article III and/or separation of powers. We saw a similar kind of phenomenon in the Terri Schiavo case. Anyway, the constitutional arguments for obligatory jurisdiction that Alito puts forth are feeble too. He actually doesn’t really put many affirmative arguments forward; most of his time is spent explaining why the cases in favor of discretion are wrong. All he cites in support is pretty much Cohens v. VA, but of course that wasn’t even a case about a state/state dispute.

On Prof. D.’s last point, I’m not sure either. Does the FN indicate an evolution in Alito/Thomas’ thinking, or is just descriptive of what past practice was? To me it’s fairly equivocal.

Joe said...

I took a concern of the OP that the policy Alito/Thomas opposed avoids the Supreme Court being involved in minor disputes that it had "no business adjudicating."

My concern here was partially that the Supreme Court seems to have no concern with their authority to deal with some rather trivial water dispute of something, so in that sense, the dispute at issue here isn't necessarily trivial.

It might be on the merits, as suggested -- so the Supreme Court can simply say that. I'm unsure there. But, that isn't really my concern. Limits of travel on principle to me, e.g., at least seems like the sort of major interstate dispute original jurisdiction is there to address. It is the sort of thing the Supreme Court has "business adjudicating."

But, one will have differences. Disagreement with others here is my fate.


I took a glance at an old opinion (by the FIRST Justice Harlan) cited by the dissent in regard to the "lack of standing." Justice Harlan argues that certain claims are not "cases and controversies," states needing to have certain interests to sue.

The case here seems to involve commerce among the states & so forth that would meet that test, at least at first blush. I'm inclined to support their bottom line: "we should note probable jurisdiction and receive briefing and argument on the question."

kotodama said...

Yes I agree the main thrust of the OP was about whether SCOTUS ought to be entertaining so-called “minor cases” if you take the Alito/Thomas position to its logical limit. (That said, I think the hypo about consular officers having an onslaught of disputes is really farfetched and not persuasive. We all know the real problem would be endless state/state and state/U.S. cases.)

I think you can look at A/T’s argument in two pieces. First is the simple binary question of whether or not any discretion exists at all, in state/state cases at least? To me the answer is clearly yes. Obviously Article III is totally silent on that point. The sum total of A/T’s authority seems to be Cohens, which is just one of those famous Marshall ipse dixits. And in any event it’s pretty much irrelevant to state/state cases, as I said before. Since it’s not expressly forbidden, it seems quite reasonable for SCOTUS to have a modicum of discretion in deciding whether to entertain such cases. After all, the same Marshall who gave us the Cohens ipse dixit also kicked off the political question doctrine, another atextual tool for avoiding thorny disputes. In fact I see a few parallels between that and the dispute here. States have political and other similar tools for resolving their disputes outside the judicial arena. The historical practice over the “first 150 years” also cited by A/T doesn’t wow me that much either. He doesn’t even say how many actual cases there were during that time, or what they involved. I don’t have access to the source he uses, but I’ll wager that it wasn’t a massive number and/or that all of them involved things like river and boundary cases. That SCOTUS rightly entertained such critical disputes to me doesn’t at all disprove that it retains discretion to reject highly marginal ones like what TX is pushing.

That nicely takes me to the second piece, which is the line-drawing question of—assuming SCOTUS does have discretion—what cases should it and should it not accept? Again, you can make an easy case for river and border disputes, because SCOTUS in fact took those kinds of cases. Everything else I think is really questionable. As I said before, A/T and TX concede their claims are novel, so that doesn’t help them at all. I think “novel” is being charitable too; the claims are downright sanctionable, but I won’t belabor what I said already. Certainly the idea that TX’s beef with CA if not judicially resolved would somehow erupt into large-scale conflict is a sad joke. Even in the so-called “Toledo War”—which actually involved a bona fide border dispute—the worst thing that happened was some dude getting shivved with … a penknife! Maybe they own a lot of AR-15s in TX nowadays, but what are they going to do, use magical bullets that can fly over NM and AZ? Please.

Finally on the merits, I may have the facts wrong, but as I understand it, all CA is doing is refusing to pay for State employees to do any business travel to TX. No offense to you (or anyone else), but that doesn’t exactly seem like a “major interstate dispute” nor does it much implicate the constitutional right to travel. Obviously CA has no obligation to pay for any business trips it doesn’t want to, and conversely, none of the State employees are in any way prohibited from travelling to TX on their own time and dime. And I do have to disagree respectfully that river disputes are “trivial”. Without giving away too much, I don’t live in the West or another area with river issues, but even from afar it’s clear those have massive impacts on people’s drinking water, agriculture, other water and river-dependent businesses, to say nothing of conservation and ecology. To compare that to something as petty as TX getting upset from a lack of CA State business junkets is rather absurd.

Joe said...

I'm not pointing to some specific "river dispute."

It is that I think there probably are "rather trivial" disputes involving water or some other battle that the Supreme Court takes as part of their original jurisdiction in that area, them not all important. But, I'm not aware (noting I don't exactly pay much attention) of the Supreme Court similarly just not agreeing to take such a dispute.

Alito notes that the dispute involves a law that "prohibits state-funded or state-sponsored travel to any State" and I personally think the law seems okay. But, in some context, such a ban very well is likely to be a serious claim. If some state prohibited state sponsored travel involving only Catholics or whatever. Claims involving boycotting groups deemed anti-Israel have arisen.

I remain agnostic on the question since it clearly involves technical jurisdictional points that are intricate. But, I'm unsure the problem of at least having briefing and so forth. If the claim is trivial, the justices can drop a short per curiam saying so.

kotodama said...

I didn't mean to muddy the waters on river disputes. My point was just that you can certainly imagine some of those disputes being quite significant as to merit a SCOTUS audience. I assume you're correct that some of the disputes are just a drop in the ocean, but I'm fine with SCOTUS declining those. While I'm no riparian aficionado, FWIW the only river disputes I happen to see making it up to SCOTUS are pretty momentous ones. That seems like an appropriate state of affairs.

Sure, I agree of course that in some possible context, even a ban on gov't travel could be problematic and serious. But the hypos you offer up are vastly different from what's going on here (AFAICT), or don't seem to make sense. Your give an example involving Catholics. I'm not sure if you meant (1) banning only travel by Catholic gov't employees in CA to anywhere in TX or (2) banning travel by all gov't employees in CA, but only to events in TX involving Catholicism. (1) could certainly be problematic, but to call that unrealistic is a major understatement. In any case it has no relevance to what's going on here. (2) slightly less farfetched than (1), I suppose, but I'm not sure why CA would ever have reason to sponsor gov't trips to religious gatherings. Even if it did, I would think the Establishment Clause also gives it ample discretion to refrain from funding such travel. But again—and I can hardly stress this enough—(2) bears absolutely no resemblance to the current scenario. This is simply one state gov't choosing to not to do business—as it should have a pretty much unrestricted right to do—in another state based on that state's *gov't policies*. I suppose you can call that "discrimination" of sorts against *Texas*, but it's certainly not the type that's forbidden by anything in the Constitution. The anti-BDS stuff had occurred to me too, but at least there you can make some kind of half-assed anti-Semitism argument. Here it's nothing but a straight policy disagreement. (I note the anti-BDS position seems quite hard to square with supporting the Jack Phillips of the world, but then, reactionaries aren't exactly known for their logical consistency.)

On the last point, I'm with you in a way. I'd actually prefer to hear the case on the merits, so it could get deservedly laughed out of court. That actually shows why Alito isn't very good at strategy, while Roberts is. Alito just mindlessly favors anything TX wants without considering the consequences. But Roberts knows that if they hear the case, it's so comically bad that they'll have to rule against TX. So it's actually doing TX a solid to punt the case out of hand. Alito's too clueless to realize that. I felt the same way about all the election cases that were punted on standing or latches etc. A lot of liberal types were celebrating, but I didn't find it so wonderful. Something denied on justiciability grounds can always be revived later and come back to haunt you like Michael Myers. In contrast, if there's a decision on the merits, it's pretty much dead forever. I also just think most justiciability doctrines are silly—not to mention fairly atextual—and should be discarded.

Andrew Hyman said...

Congress shouldn’t have to say, “We really really meant what we said in the old jurisdiction statute.”