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.