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Two justices have made clear that they believe the court is neglecting too many of the disputes.
There's a unique aspect to legal disputes between states, in that if one state wants to bring a court complaint against another, it's possible for them to proceed directly to the U.S. Supreme Court. That's opposed to most other lawsuits that work their way to the high court from lower courts on appeal.
The legal framework that allows states to do this is known as "original jurisdiction" and is outlined in Article III of the U.S. Constitution. Under federal law, the Supreme Court's jurisdiction over state versus state legal conflicts is also considered to be "exclusive," meaning states can't go to another court to resolve their differences.
These days, it's relatively rare that the Supreme Court takes up original jurisdiction cases. When it does, it typically appoints a "special master" to review the issues involved. The cases that do get picked up don't always grab huge amounts of attention compared to many of the other constitutional clashes that come before the court.
"The original jurisdiction docket is certainly one that flies under the radar," Mithun Mansinghani, Oklahoma's solicitor general, noted during an online event this week co-hosted by the State Energy & Environmental Impact Center and State & Local Legal Center.
"The statute says the court 'shall' have jurisdiction, but over the years the Supreme Court has interpreted their exercise of that jurisdiction as discretionary," he added.
But state litigators have recently taken notice that Justices Clarence Thomas and Samuel Alito have backed the idea that the court, perhaps, shouldn't be turning down so many state versus state disputes.
“It’s an interesting issue. We’re certainly seeing Justices Thomas and Alito becoming more forceful about it," said Lindsay See, West Virginia's solicitor general. "Right now we don't seem to have other justices who are signing onboard."
If states want a case to be heard, they submit a "motion for leave to file a bill of complaint" with the court and then the justices decide whether or not to accept original jurisdiction.
In recent years, original jurisdiction cases have often been disagreements over water rights. For instance, Florida fought unsuccessfully to prove that Georgia's overuse of water flowing into the Apalachicola River was destroying oyster fisheries and causing other environmental problems in the Sunshine State. That case, which dates back to 2013, was dismissed in April.
A disagreement between Texas and New Mexico over water on the Pecos River centered largely on which state should shoulder the loss of evaporated water stored after heavy rains. New Mexico prevailed in that court fight, decided in December.
Two Justices Show Interest
Earlier this year, Thomas and Alito joined in a 10-page dissent when the Supreme Court rejected a case where Texas sought to challenge a California statute prohibiting state-funded travel to other states with laws on their books deemed to be discriminatory.
In this case, the California sanctions were triggered by a Texas law that allowed foster care and adoption agencies, acting on religious grounds, to forego working with people based on their sexual orientation or gender identity when placing children with families.
The dissent, authored by Alito, doesn't delve into the claims in the case, but instead critiques the court's shift, over multiple decades, towards taking on fewer state original jurisdiction cases.
"The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive," Alito writes. "The Court adopted this practice without ever providing a convincing justification."
He describes a principal reason for the court passing on so many of the cases—the idea that these disputes would "crowd out consideration of more important matters" arising from appeals courts—as resting on a "dubious factual premise."
"It is precisely because these disputes have a 'delicate and grave' character that they were placed exclusively in our hands," Alito adds.
See explained that at the heart of the matter is what "shall" means in this context. That the court must take every state original jurisdiction dispute? Or that it can pick and choose?
"If the Supreme Court doesn't take them up, there's not another forum," said See.
Since late last year, the court has declined to take up other state versus state cases.
There was a Texas challenge against 2020 presidential election voting results in four states. A New Hampshire clash with Massachusetts over a Bay State policy taxing the income of certain remote workers, who'd worked in-state before the Covid-19 pandemic. And Montana's and Wyoming's attempt to get the court to wade into a long-running battle over a coal export facility Washington state refused to permit.
In all of those instances, the court passed.
In the Supreme Court's next term, there's another water dispute teed up for an oral argument on Oct. 4. This one between Mississippi and Tennessee over groundwater.
Mansinghani noted another case granted original jurisdiction, which focuses on whether Delaware gets to claim, or "escheat," unclaimed property from cash transfer company MoneyGram, which is incorporated there, or if other states can claim some of it as well. A special master in that case issued findings on it this year.
See said that the Supreme Court's now prevailing approach to original jurisdiction disputes mean that a state needs to think creatively when it comes to getting their cases into court. "It certainly has to be incredibly persuasive," she said.
There's also a practical consideration that if states present too many of the cases, it could reinforce the notion that it would become unwieldy if the court takes them up more regularly. "It really puts a spotlight on what sort of cases states are bringing," See added.
Bill Lucia is a senior editor for Route Fifty and is based in Olympia, Washington.