Could Thomas and Alito be Right About SCOTUS Original Jurisdiction in State-versus-State Cases?

The state of Florida attempted to sue the states of California and Washington, alleging that the latter two permit undocumented immigrants to obtain commercial driver's licenses even if they cannot read English. Article III of the Constitution grants the Supreme Court original jurisdiction of such state-versus-state cases, and a federal statute, 28 U. S. C. §1251(a), makes such jurisdiction exclusive of the lower federal courts. Nonetheless, last week, the Supreme Court disallowed the lawsuit in a one-sentence order: "The motion for leave to file a bill of complaint is denied."

That order prompted a dissent by Justice Thomas, joined by Justice Alito. They contended, as they had in prior state-versus-state cases in which the Court had likewise denied leave to file, that the Court's doing so was unauthorized. Indeed, the Thomas dissent quoted Chief Justice John Marshall in Cohens v. Virginia: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." For those in the know, them's fightin' words because the very next line in Cohens is this: "The one or the other would be treason to the Constitution." Justice Thomas didn't quote that line, but his colleagues in the majority would have known that he and Justice Alito were effectively accusing them of treason.

That's pretty strong stuff. Are Justices Thomas and Alito right? Much as it pains me to say so, the answer is mostly yes.

Let's start with some basics. Anyone who has sat through one semester of constitutional law will recall that the underlying holding of Marbury v. Madison is that Section 13 of the Judiciary Act of 1789 was unconstitutional insofar as it gave the Supreme Court original jurisdiction beyond what is conferred in the Constitution's Article III. But while Congress cannot add to the Court's original jurisdiction, it can confer concurrent jurisdiction on the lower federal courts in cases that also fall within the Supreme Court's original jurisdiction. In upholding such concurrent jurisdiction in Ames v. Kansas (1884), the Court pointed to practical considerations and a long unbroken practice.

Ames held that Congress can choose whether to make any category or sub-category of the Supreme Court's original jurisdiction exclusive or concurrent. Where it makes such jurisdiction concurrent, it is hard to argue against the Supreme Court's exercise of discretion to decline jurisdiction and allow a case to be resolved by the lower courts. 

To be sure, rejecting original jurisdiction in the Supreme Court under any circumstances arguably violates the Cohens admonition. After all, concurrent jurisdiction is still jurisdiction, and if Marshall is to be taken literally, there is never discretion to deny it.

But Marshall should not be taken literally. As a general matter, the scholarship of the late great David Shapiro offered positive and normative grounds for recognizing a sound discretion in all courts to decline jurisdiction in some cases. And as a practical matter, where there is concurrent jurisdiction, cases are better handled if filed originally in federal district court than in the Supreme Court, which is not well suited to take evidence. Even when the Court does exercise original jurisdiction, it typically does so through a kind of cheat: it employs a special master to take evidence and prepare a report to which it usually gives substantial deference.

However, state-versus-state cases do not fall within the concurrent jurisdiction of the lower federal courts. As the plain language of §1251(a) indicates, and as the Supreme Court confirmed in 1992 in Mississippi v. Louisiana, the only place one state can sue another state is in the U.S. Supreme Court. By contrast with a concurrent jurisdiction case, denying leave to file in the Supreme Court in such a case leaves a state plaintiff state with no forum in which to pursue its cause. How can that be justified?

That's the question posed by Justices Thomas and Alito. The majority doesn't have an answer. Can we supply one for them?

The short answer is no. The longer answer is a bit more complicated.

Sometimes there will be unstated but nonetheless solid grounds for denying jurisdiction. In Florida v. California and Washington, for example, a majority of Justices may have concluded that Florida lacks standing because any injury to the state of Florida (for example, by a non-English reading truck driver from California causing an accident in Florida) is too speculative.

Or a majority may have thought Florida's case insubstantial on the merits: although Justice Thomas in dissent cited two Trump administration regulations regarding whom states can make eligible for commercial driver's licenses, a majority of the Court might have thought that such regulations are to be enforced only by the Department of Transportation rather than through lawsuits brought by individuals or states.

Whatever reasons the SCOTUS majority had for thinking that Florida's lawsuit could be quickly dispatched, it did not disclose them. That feeds the impression that a majority of the Court believes it has the power simply not to hear cases within its exclusive original jurisdiction because the justices think that such cases are unimportant. Indeed, that impression is largely accurate, with an important caveat.

The caveat is that, as the Court explained in Mississippi v. Louisiana (linked above), one of the criteria it applies in deciding whether to decline original jurisdiction is whether there is an alternative forum. Now, one might think that Supreme Court exclusivity necessarily means there is no alternative forum, but the Court counts as an adequate alternative forum the possibility that the same issue can be decided in a case involving different parties.

I'm not persuaded that ought to count as an alternative forum. Usually we think of such alternatives as fora for the same claimants as well as the same issues.

Moreover, one would think that if the Court is going to reject a case that falls within its nominally exclusive jurisdiction partly on the ground that the same issue can be litigated in some other court with other parties, it ought to say that. Or, if there is some other reason for rejecting the case, such as standing, it should say that.

There is something of a precedent for what the Court has been doing in §1251(a) cases. Prior to 1988, in addition to hearing cases by way of its discretionary decision to grant a petition for a writ of certiorari, the Court was obligated to hear a large category of "appeals" in which its jurisdiction was automatic. However, it lacked the capacity to give full plenary consideration to all of those cases, and so over time it would, in a great many cases, summarily affirm the lower court rulings without issuing an opinion. An order summarily affirming was technically a decision on the merits, but for nearly all purposes, it functioned more like a discretionary non-precedential denial of certiorari. The system was broken, and eventually Congress responded by eliminating virtually all of the Court's mandatory appellate jurisdiction.

While I wouldn't try to justify the Court's pre-1988 summary affirmance practice, I understand that the Court was driven to it by docket pressure. By contrast, there is no comparable docket pressure in §1251(a) cases. According to a 2022 law review article by Professor Heather Elliott, from 1976 to 2022, the Supreme Court denied 28 of the 63 petitions it received for state-versus-state original jurisdiction cases. That is less than one case per year in which the Court exercised the discretion it believes it has to reject such cases. Surely it would not be unduly burdensome for the Justices to issue at least a brief per curiam opinion in each such case explaining why it was denying leave to file.