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History of ‘Original Jurisdiction’
Recent Original Jurisdiction Cases

The concept of original jurisdiction laid out in the Constitution allows federal courts to hear cases brought against states by other states or citizens of other states, bypassing the lower courts completely. Today, these cases mostly comprise water disputes, but in late 2020, in a historical first, Texas brought an election lawsuit against Pennsylvania challenging the latter’s voting laws that handed the presidential win to Joe Biden. In this Court Report, court expert Kenneth Jost discusses the history of original jurisdiction and those cases recently brought before the Court.

The Supreme Court made perhaps the most consequential decision of the 2020 term in a brief, three-sentence order on December 11 that dismissed a lawsuit filed by the state of Texas seeking to overturn the results of the November 3 presidential election. The Lone Star State filed the suit under the Supreme Court’s so-called “original jurisdiction” in suits by or against states. Texas asked the justices to block election results in four states that Joe Biden carried and needed to gain an Electoral College majority over President Trump.

Texas’s Republican attorney general Ken Paxton filed the unprecedented lawsuit, formally titled Texas v. Pennsylvania, under little-known constitutional and statutory provisions that give the Supreme Court exclusive jurisdiction over suits brought by one state against another. Texas argued that late changes in voting procedures and alleged irregularities in vote-counting in the four states—Georgia, Michigan, Pennsylvania, and Wisconsin—effectively nullified the state’s interest in having its electoral votes counted as part of a legitimate Electoral College tabulation.

The Court declined to hear the case by explaining that Texas “has demonstrated no judicially cognizable interest in in the manner in which another State conducts its elections.” Two justices, Alito and Thomas, argued in a brief, dissenting statement that the Court had to hear the case because Texas—and the 17 other states that backed Texas’s initiative—had no other judicial forum to present their complaint. Both justices had taken that position in dissents in other original jurisdiction cases dating back to 2016.

Texas filed what was formally called a “motion for leave to file a bill of complaint” on December 7 after the Trump campaign and Republican officials had failed in the four states named and several others to overturn Biden’s popular vote victories. Trump filed a motion to intervene in the case two days later, followed the same day by a friend-of-the-court brief from the state of Missouri supporting Texas’s initiative on behalf of 17 states in all.

The four states named as defendants filed briefs on December 10 urging the Court to reject Texas’s motion. The District of Columbia filed a friend-of-the-court brief the same day on behalf of 22 states and territories in all urging the justices to deny Texas’s motion.

Texas’s complaint appeared to have no precedent in more than two centuries of the Supreme Court’s original jurisdiction—“original” jurisdiction, that is, as opposed to “appellate” jurisdiction—in suits with a state as party. Texas cited no similar case in its legal filings, nor did the states that supported Texas’s complaint. In fact, the Court’s “original jurisdiction” cases through the years have consisted almost exclusively of border disputes, water rights litigation, and financial disputes. To resolve those cases, the Court appoints a so-called “special master” to act, in effect, as trial judge and recommend a resolution for the justices to consider.

History of ‘Original Jurisdiction’

The Constitution gives federal courts jurisdiction over "[c]ontroversies between two or more States, between a State and Citizens of another State . . ., and between a State . . . and foreign States, Citizens or Subjects . . .” (Art. III, Sec. 1). It further provides that the Supreme Court “shall have original jurisdiction” in all cases involving foreign ambassadors or “in which a State shall be Party,” but appellate jurisdiction in most other cases.

From its earliest days, the Supreme Court has assumed that its original jurisdiction “flows directly from the Constitution and is therefore self-executing without further action by Congress,” according to a summary by Cornell Law School’s Legal Information Institute. Even so, Congress included a provision in the Judiciary Act of 1789 to give the Court original jurisdiction in suits between a state and citizens of another state.

Under that provision, the Court touched off a constitutional crisis by agreeing to hear a case, known as Chisholm v. Georgia (1793), brought by a South Carolinian as executor of the estate of a deceased South Carolina merchant to collect debts owed to the merchant for merchandise delivered to Georgia during the Revolutionary War. The Court ruled 4–1 for Chisholm after Georgia refused to appear by claiming that as a sovereign state it could not be sued without its consent.

Georgia and many other states reacted with such indignation that Congress approved and the states quickly ratified a constitutional amendment effectively overruling the decision. The Eleventh Amendment, as ratified in 1795, provides that federal courts have no power over “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Chief Justice John Marshall apparently assumed that the Court had exclusive authority in cases within its original jurisdiction, but Congress from 1789 onward gave lower federal courts concurrent jurisdiction in some of those cases. Through the 19th century, the Supreme Court repeatedly ratified in several decisions lower courts’ power to hear such cases under the congressional grants of jurisdiction.

The Federal Judicial Center, the federal courts’ research arm, notes in a summary of original jurisdiction cases that the Court’s “most frequent exercise” of original jurisdiction has been in suits between two or more states. Before the Civil War, the only such cases that the Court heard were boundary disputes. As one example, the Center noted the Court’s resolution in Rhode Island v. Massachusetts (1838) of a boundary dispute between the two neighboring states. The Court rejected Massachusetts’s objection to the suit and, after closely examining colonial land grants from the 17th century, issued a decision that largely adopted Rhode Island’s position.

The Center notes that states in the 20th century have brought additional kinds of cases, involving water rights, disputes over contracts, the impact of state economic regulations, and environmental pollution. The Center also notes that original jurisdiction cases have always been “a minute portion of its overall caseload,” with written opinions in only 123 original cases between 1789 and 1959. Since 1960, the Court has received fewer than 140 motions for leave to file original cases, with nearly half of those denied without a hearing.

“The Court has generally accepted state party cases dealing with boundary and water disputes,” the Center reports, “but it has been much less likely to filed original cases dealing with contract disputes and other subjects not deemed sufficiently substantial for the Court’s resources.”

In its report, Cornell’s Legal Information Institute that the Court shies away from environmental pollution disputes on the ground that those cases entail “complex, novel, and technical factual questions not suitable for resolution at the Court’s level.” In one such case, the Court in Illinois v. City of Milwaukee (1972) denied Illinois’ motion to sue several municipalities in Wisconsin for polluting Lake Michigan by discharging untreated sewage. In rejecting the suit, the Court noted that Illinois could bring its action in lower federal courts. In his opinion for the Court, Justice William O. Douglas noted that the Court has often said, dating back to the 19th century, that “our original jurisdiction should be invoked sparingly.”

However, the Court in 1972 allowed Vermont to sue New York and the New York-based International Paper Corporation over the paper mill’s discharge of pollutants into Lake Champlain along the states’ border. Two years later, the Court’s ruling in Vermont v. New York (1974) urged the two states to resolve the dispute by means of an enforceable bistate compact instead of through litigation.

Recent Original Jurisdiction Cases

In recent years, water rights disputes have been the mainstay of the Court’s occasional original jurisdiction cases. In fact, the Court was near to a decision in a water rights case in December 2020 when Texas asked to file its election contest case on December 7. The justices had heard oral arguments in the case, Texas v. New Mexico, as they opened the new term on October 5.

Like most of the water rights cases, the dispute between New Mexico and Texas over the waters of the Pecos River extended over several decades—specifically, dating from 1940. The two states agreed on a bistate compact in 1949; four decades later, the Court appointed a special master to monitor compliance with the compact’s terms. A new issue arose after New Mexico stored water in 2015 at Texas’s request for flood control purposes and then claimed credit for the water that evaporated during storage. Texas objected, but the river master held—and the Supreme Court affirmed in a decision issued on December 14—that New Mexico was entitled to the credit under the compact’s terms.

The Court’s general practice of agreeing to hear interstate water rights disputes seemingly recognizes the concrete interests at stake in such disputes: the fear among downriver states that upriver states will divert “too much” water for their irrigation purposes and leave downriver states with too little. Within the span of three years, the Court issued written decisions in two such cases: Kansas v. Nebraska (2015) and Florida v. Georgia (2018).

The Court laid out the general rule of decision in such cases early in the 20th century in a dispute between two western states over the waters of the Laramie River, which rises in Colorado and flows northward into Wyoming. “The relative rights of two adjoining states to the use of an innavigable interstate stream must be determined,” the Court wrote in Wyoming v. Colorado (1922), “in accordance with right and equity and in harmony with the constitutional principle of state equality.” The Court added, citing its earlier decision in Kansas v. Colorado (1907), that the rule “does not imply an equal division of the water between the two states.”

As in Texas v. New Mexico, the Court evidently views with approval bistate compacts to set the rules for allocating water rights between end users in adjoining states. In 2015, for example, the Court held in a 6–3 decision in Kansas v. Nebraska (2015) that the Cornhusker State had “knowingly failed” to comply with the terms of the bistate Republican River Compact. The decision adopted the special master’s recommendation to award Kansas as the downriver state $3.7 million for its losses and $1.8 million in disgorgement.

Three years later, in contrast, the Court overruled the special master it had assigned to consider a long-running dispute between Georgia and Florida over the waters of the Apalachicola-Chattahoochee-Flint River basin. Georgia depends on the Chattahoochee and Flint rivers to provide water to metropolitan Atlanta and farmers and fruit growers in the state’s southeastern region. Florida filed a complaint against Georgia in 2013 in an effort to win a judicial decree to require the U.S. Army Corps of Engineers to manage dams that it operates in Georgia in order to increase water flows to Florida’ Apalachicola River to feed an estuary bay rich with oyster beds and sea life. The special master found that Florida had been “harmed” but found that the state had failed to offer “a workable and effective remedy.” The 5–4 majority in Florida v. Georgia (2018) ruled that the special master had adopted too strict a standard in dismissing Florida’s complaint and remanded the case for the special master to reconsider.

In contrast to the water rights disputes, the Court through the years has declined to entertain numerous complaints filed by states in a wide variety of politically charged disputes. The Court in 1966, for example, declined in Delaware v. New York to entertain a suit challenging the constitutionality of the Electoral College under the one-person, one-vote rule. Four years later, the Court refused in Massachusetts v. Laird (1970), over the dissent of three justices, to consider the Bay State’s suit challenging the constitutionality of U.S. actions in Indochina.

In a more recent case, the Court refused in Nebraska v. Colorado (2016) to consider a complaint by Nebraska and Oklahoma that Colorado’s decision to legalize marijuana was having harmful spillover effects in the states to Colorado’s east. Thomas argued in a dissent that Alito joined that the Court should have heard the case and taken the opportunity to “reevaluate our discretionary approach to our original jurisdiction.” Thomas complained in particular that the Court gave “no explanation” for rejecting Nebraska’s motion to file the complaint. “Whatever the merit of the plaintiff States' claims,” Thomas wrote, “we should let this complaint proceed further rather than denying leave without so much as a word of explanation.’

Thomas also dissented when the Court refused in Arizona v. California (2020) to consider an interstate tax dispute between the two western neighbors. Arizona was challenging California’s imposition of state income tax on Arizona residents with passive investments in California companies. The Court denied Arizona permission to file the complaint, but Thomas dissented in direct contradiction of the Court’s practice through the years. “We likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States,” he wrote in a dissent joined by Alito.

The coronavirus pandemic produced a new interstate tax dispute that reached the Court in October 2020 in a complaint by New Hampshire against its New England neighbor, Massachusetts. The Granite State asked in New Hampshire v. Massachusetts to challenge the Bay State’s policy of imposing state income taxes on New Hampshire residents working from their homes for Massachusetts companies without ever setting foot in the Bay State. Ohio and nine other states urged the Court in a friend of the court brief to reject the complaint, but four states urged the Court to hear the case by noting that at least five other states followed a rule similar to that Massachusetts. New Hampshire argued in a reply brief that the dispute should be handled through ordinary tax appeals. By late December, the justices had yet to rule on New Hampshire’s motion.


Document Citation
Kenneth Jost, High Court’s ‘Original Jurisdiction’ in Suits by States, CQ Supreme Court Collection (2021),
Document ID: cqelsc-1619-114650-2964154
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