Article III, Section 2 says that "[i]n all Cases … in which a State shall be a Party, the supreme Court shall have original Jurisdiction." But does that mean it has mandatory original jurisdiction? In a pending case, a group of states, led by Dave Yost and Benjamin Flowers (respectively, the Attorney General and Solicitor General of Ohio), argue yes. Here is their brief (in Arizona v. Sackler). And here is their summary of argument:
Article III confers the “judicial Power” on the federal courts and allows them to exercise that power in certain categories of “Cases” and “Controversies,” including “Controversies … between a State and Citizens of another State” Art. III, §2, cl.1. The same article vests this Court with original jurisdiction over cases “in which a State shall be Party.” Art. III, §2, cl.2. This Court has long (and correctly) interpreted this language to confer original jurisdiction in only those cases to which the judicial Power extends “because a State is a party.” Cohens v. Virginia, 6 Wheat. 264, 394 (1821) (emphasis added). (As opposed to cases, such as federal-question cases, in which the courts have jurisdiction without regard to the parties’ identities.) The category of cases to which jurisdiction extends because a State is a party includes controversies “between a State and Citizens of another State.”
The “judicial Power” extends to this controversy between a State (Arizona) and nonresidents (the defendants). And this Court unambiguously has original jurisdiction over this case “in which a State shall be Party.” Art. III, §2, cl.2. Thus, the Court must entertain Arizona’s suit unless it has discretion not to hear cases over which it has original jurisdiction.
The Court has no such discretion. Article III gives the courts no freestanding power “to decline the exercise of jurisdiction which is given.” Cohens, 3 Wheat. at 404. Nor does it give this Court any power to decline jurisdiction specifically in cases arising under its original jurisdiction. Indeed, this Court has acknowledged that Article III, as originally understood, confers no such discretion. Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 496–97 (1971).
Notwithstanding this acknowledgment, the Court has claimed for itself the power to decline the exercise of jurisdiction. Id. at 498. “The Court’s reasons for transforming its mandatory, original jurisdiction into discretionary jurisdiction have been rooted in policy considerations.” Nebraska v. Colorado, 136 S. Ct. 1034, 1035 (2016) (Thomas, J., dissenting from denial of motion for leave to file complaint). For example, the Court has “cited its purported lack of ‘special competence in dealing with’ many interstate disputes and emphasized its modern role ‘as an appellate tribunal.’” Id. (quoting Wyandotte, 401 U.S. at 498).
These arguments are unpersuasive. Most fundamentally, this Court cannot rewrite the Constitution whenever, in its view, doing so makes better policy. Regardless, the policy arguments fail on their own terms. For example, the Court’s ability to appoint special masters, and the option to certify state-law questions to state courts, mitigate or eliminate any concern about this Court’s “special competence” or its ability to function primarily as an “appellate tribunal.” And even if this Court were to restore the mandatory nature of its original jurisdiction over disputes between States and nonresidents, it would face no serious risk of being flooded with litigation: In disputes between States and nonresidents, only the States can sue under this Court’s original jurisdiction; the nonresidents have no power to sue the States. See U.S. Const., 11th Am. Since States will usually prefer to proceed against nonresidents in their own courts if possible, they will rarely seek relief in this Court.
Because this Court’s decisions claiming discretion to decline jurisdiction in original matters are contrary to the Constitution and poorly reasoned, and because they have engendered no reliance interests, they ought to be overruled. …
Posted at 6:16 AM