The Journal of Appellate Practice and Process

Volume 18 Issue 1 Article 4

2017

Original Intent: Understanding the Supreme Court's Original Jurisdiction in Controversies Between States

Kristen A. Linsley

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Recommended Citation Kristen A. Linsley, Original Intent: Understanding the Supreme Court's Original Jurisdiction in Controversies Between States, 18 J. APP. PRAC. & PROCESS 21 (2017). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol18/iss1/4

This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. 39639-aap_18-1 Sheet No. 15 Side A 11/15/2017 09:50:50 , Original No. 138, a ARTICLES Vol. 18, No. 1 (Spring 2017) (Spring 2017) No. 1 Vol. 18, ROCESS AND PROCESS AND PROCESS P THE JOURNAL OF JOURNAL THE NTRODUCTION RACTICE AND I. I South Carolina v. North Carolina P ) 11/8/2017 6:08 PM APPELLATE PRACTICE PRACTICE APPELLATE ELETE D PPELLATE OT A N O 1(D ESEND At a time in which the closely watched cases reaching the At a time R OURNAL OF J HE INSLEY T *The author is a partner at Gibson, Dunn & Crutcher LLP. While at a different firm, she While at a LLP. Dunn & Crutcher at Gibson, *The author is a partner served as a Special Master in Supreme Court tend to involve novel issues under the Bill of Court tend to involve novel issues Supreme federal statutory questions that have Rights or important category of important in the lower courts, one produced conflicts cases on the Court’s docket often goes unnoticed: those over disputes between involving the Court’s original jurisdiction is somewhat Court at the Supreme jurisdiction States. Original act as both the trial court and of an oddity, in that the Court must unusual last resort in deciding these matters—an the court of discovery disputes, takes posture for a Court that rarely resolves original findings of fact. or makes But the unique live testimony, form of government—with structure of our federalist ORIGINAL INTENT: UNDERSTANDING THE UNDERSTANDING THE ORIGINAL INTENT: IN ORIGINAL JURISDICTION SUPREME COURT’S BETWEEN STATES CONTROVERSIES Kristin A. Linsley* L dispute between the two States over the allocation of the waters of the Catawba River. The The River. Catawba waters of the the allocation of the States over the two dispute between in the preparation of input for her helpful research and Sugimoto author thanks Lindsey this article. 39639-aap_18-1 Sheet No. 15 Side A 11/15/2017 09:50:50 A 11/15/2017 15 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 15 Side B 11/15/2017 09:50:50 ROCESS P RACTICE ANDRACTICE P PPELLATE A OURNAL OF OURNAL J ) 11/8/2017 6:08 PM HE ELETE D OT N O but the Court is not bound to follow them, and a State but the Court is not bound to follow them, 1(D 1 ESEND Although Article III also created other bases for the Court’s bases for the Court’s created other III also Although Article for, the Court’s original First, the history of, and rationale structural historical and of this Second, in part because R 1. form of pleadings and motions also that “[t]he (providing Sup. Ct. R. 17(2) INSLEY prescribed by the Federal Rules of Civil Procedure is followed” in original actions). Civil Procedure is of Federal Rules prescribed by the 22 T 22 separate of their aspects some losing sovereigns subordinate retaining others—called the union but upon joining sovereignty these disputes between which in judicial structure for a unique avoided in a way that be resolved sovereigns could subordinate the the States and accorded court systems state the partisan them. status entitled which their sovereign dignity to between this article focuses on disputes original jurisdiction, of the been the mainstay the inception have States, which from represented have and jurisdiction jurisprudence, Court’s original for exclusive reserved consistently III power the strain of Article the Court’s original Several features of the Court. by resolution docket— the Court’s “appellate” it from jurisdiction distinguish cases to describe its review of that is used broadly a term and courts, state the or lower federal courts originating in the in and, the Court’s certiorari jurisdiction that includes both in certain categories of cases. earlier years, appeals as of right has the Court in which to the manner are central jurisdiction Part II of this article defined the contours of the jurisdiction. grant of original jurisdiction in explores the background of the been construed in which that grant has Article III, the manner States, and the early history of and defined in disputes between jurisdiction. As this history the Court’s exercise of original has given great weight to the shows, the Court consistently in for its original jurisdiction structural rationale historical and grant should be exercised how that jurisdictional determining and applied. has produced very context, the Court’s original jurisdiction appellate docket. its ordinary different issues and rules than has requires the jurisdiction very nature of original Because the court of last resort, the rules and as a Court to act as a trial court of jurisdiction from either type for such cases are very different Rules of Civil Procedure and the The Federal alone. standing as Federal Rules of Evidence, for example, are said to serve “guides,” L 39639-aap_18-1 Sheet No. 15 Side B 11/15/2017 09:50:50 B 11/15/2017 15 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 16 Side A 11/15/2017 09:50:50 3 4 S ’ 23 OURT TATES S C Article III, Section 2, Article III, Section 5 ETWEEN B ATURE OF THE URISDICTION J N ONTROVERSIES RIGINAL 6 —C ) 11/8/2017 6:08 PM O Further, the intensely time-consuming time-consuming the intensely Further, , 558 U.S. at 259 (noting that case had first been referred to a first been referred to a case had 259 (noting that at U.S. , 558 2 OURCE AND ELETE S D S.C. v. N.C., 558 U.S. 256, 267 (2010) (indicating that the Court will (2010) (indicating that the Court 267 256, U.S. N.C., 558 S.C. v. OT HE N . art. III, § 1. III,. § art. . III,art. § 2. O S.C. v. N.C. , URISDICTION 1(D see also II. T J ONST ONST ESEND Article III, Section 1, of the Constitution states that the of the Constitution Section 1, Article III, R See, e.g. 6. C U.S. 2.initial pleading shall be preceded by a motion (providing that “[t]he R. 17(3) Sup. Ct. 3. original jurisdiction because to exercise (refusing 1, 15 (1900) U.S. Tex., 176 La. v. 4. 5. C U.S. RIGINAL INSLEY for leave to file”). the case was not a controversyin substance between states: original should be jurisdiction absolute and the matter in itself properly [i]s “the necessity when exercised only justiciable”); exercise its original jurisdiction “sparingly” and will “retain substantial discretion to decide (internal quotation marks omitted)). an original forum” particular claim requires whether a special master). itemizes the specific categories of cases to which the “judicial “judicial the specific categories of cases to which the itemizes or between two “Controversies Power” shall extend, including that “[i]n all Cases affecting more States,” and goes on to state in other public Ministers and Consuls, and those Ambassadors, court shall have the supreme which a State shall be a Party, original jurisdiction.” Part III discusses some of these unique issues and practical these unique issues and practical of some Part III discusses addressed them. the Court has in which manner concerns and the States, shall be vested in one“judicial Power of the United as the Congress may Court, and in such inferior Courts supreme ordain and establish.” to time time from O jurisdiction Court’s the to invoke seeking Court’s seek the must do so. leave to of disputes that jurisdiction for the narrow class exercise of that constitutional the necessitated the concerns that implicate truly Court the concerns, the practical to address grant. And these cases. Special Masters to assist with frequently appoints L that the potential role create court of the trial responsibilities of an inordinate portion could occupy jurisdiction cases original the Court in could involve resources, and limited the Court’s constituents. their or between the States petty disputes managing its original reasons, the Court has guarded For precisely these grave” the “delicate and reserving carefully, jurisdiction 39639-aap_18-1 Sheet No. 16 Side A 11/15/2017 09:50:50 A 11/15/2017 16 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 16 Side B 11/15/2017 09:50:50 HE T ROCESS P therein, William William 8 see also 10 Although of 9 RACTICE ANDRACTICE P 31 (2001); *231 (1809) (indicating that the The distinction between between The distinction OURT 7 C original jurisdiction original PPELLATE A OMMENTARIES UPREME Wis. v. Pelican Ins. Co., 127 U.S. 265 (1888), (1888), U.S. 265 127 Ins. Co., Wis. v. Pelican S ,C HE , T see also OURNAL OF OURNAL J ) 11/8/2017 6:08 PM LACKSTONE B HE ELETE EHNQUIST D A. Nature of Original Jurisdiction Jurisdiction Original of A. Nature OT Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268 (1935). 268 U.S. 296 Co., White M.E. v. Cnty. Milwaukee ILLIAM N O , the boundary that (1990) (noting 380–81 U.S. 376, 497 S.C., v. Ga. . 81, at 551 (Alexander 1961) (asserting Cooke ed., that Hamilton) (J.E. .H.R O ,1 W ,1 1(D N ESEND ILLIAM . (emphasis in original); See, e.g. The term “original” jurisdiction is distinguished from is distinguished jurisdiction “original” The term R Id See, e.g. 7. W 9. 10. by royal the states continue to be guided some of borders between Even the current 8. EDERALIST INSLEY overruled in part by overruled in part privy council acted as a “court of appeal” in some cases, and that appeal to the king himself and that appeal cases, in some privy council acted as a “court of appeal” possible). was also Court instead of the are interpreted by the Supreme charters, except that now these charters crown. states, originally 1732 by letters patent between the two defined in issued by the crown, the boundary). to define continues Beaufort, which of Treaty 1787 was clarified in the course this type of original jurisdiction would not be the same as would not jurisdiction course this type of original Article III—given that the that exercised by the Court under that created certain rights king, as the source of the charters provinces before the (including boundaries) for American have been called upon to interpret Revolution, naturally would controlled the colonies—the those charters so long as England have provided a model for similar reference nonetheless would Court, particularly given that some resolution by a Supreme as matters to be relevant to such royal charters continued ratified. was boundaries even after the Constitution F “original” and “appellate” jurisdiction was a settled feature of and “appellate” jurisdiction “original” was adopted. the Constitution at the time English law sovereignty.”upon the principles of [feudal] 24 T 24 has “the power that the Court It means jurisdiction. “appellate” other first instance”—in a lawsuit in the decide and to hear the “appellate” denotes court—whereas act as a trial words, to has already another court that of the judgment power “to review the first instance.” lawsuit in heard the L the “original to describe jurisdiction” the term Blackstone used provinces American between disputes to resolve king role of the “Whenever matters: of their charters” or similar over the “extent or provinces in America, two arises between also a question their charters and the like, of the extent elsewhere, as concerning council exercises the king in his “the expressions ‘appellate jurisdiction, both as to law and fact,’ do not necessarily imply a to law as “the expressions ‘appellate jurisdiction, both inferior courts”). juries in the by decided of facts court re-examination in the supreme 39639-aap_18-1 Sheet No. 16 Side B 11/15/2017 09:50:50 B 11/15/2017 16 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 17 Side A 11/15/2017 09:50:50 The The see also 11 see generally 15 .; .; 25 Id but the framers but the framers TATES 14 S 13 ETWEEN B , Art. IX (1877) (“The United States in Congress , States in Congress Art. IX (1877) (“The United , Art. II (1877) (“Each State retains its sovereignty, , Art. II (1877) (“Each ONTROVERSIES , 180 U.S. at 221–24 (followingat 221–24 proposals , 180 U.S. through language . 22 (Alexander Hamilton) at 143 (J.E. Cook ed., 1961) . 22 (Alexander Hamilton) at 143 (J.E. Cook —C ) 11/8/2017 6:08 PM O and any disputes between states over states over between and any disputes N 12 ELETE . 555, 620 (1994) (tracing the “progression of the drafts, from one (tracing the “progression of (1994) 620 . 555, ONFEDERATION ONFEDERATION D C C . 21 (Alexander Hamilton) at 130 (J.E. Cooke ed., 1961). 1961). ed., (J.E. Cooke Hamilton) at 130 (Alexander . 21 Rethinking the Supreme Court’s Original Jurisdiction in State-Party Court’s Original the Supreme Rethinking EV OT O N N O . L. R EDERALIST URISDICTION 1(D J F AL see also Mo. v. Ill. ; RTICLES OF RTICLES OF HE ESEND Id. Early drafts of Article III of the Constitution would have of Article III of the Constitution Early drafts The original jurisdiction bestowed on the Supreme Court Court Supreme on the bestowed jurisdiction original The R EDERALIST , 82 C F 11. A 15. 12. T 13. A 14. J.E. Pfander, RIGINAL HE INSLEY freedom, and independence, and every power, jurisdiction, and right, which is not by this and right, which is not by jurisdiction, power, every and freedom, and independence, in Congress assembled.”); United States, delegated to the confederation expressly T that vested all original jurisdiction in state courts to one that conferred original jurisdiction on distrust of state was predicated grant that “the concluding Court,” and directly upon the federal courts”). the cognizance in for original a preference courts and vested all original jurisdiction in state courts, jurisdiction vested all original not would the view that state court jurisdiction quickly came to of cases—either categories certain important be satisfactory for their own entertain biases in favor of courts might because state or because certain disputes might citizens or local governments, highest level. After several the at interests national implicate of Article III conferred rounds of drafts, the final version disputes Court over Supreme original jurisdiction upon the of cases. categories between States and other important O the by that exercised than character of a different was indeed the time design. At to the Constitutional was crucial crown, and of under the Articles ratified, and was the Constitution subject right, its own in was sovereign each state Confederation, to Congress. delegated” powers “expressly only to were to be or any other causes whatever” “boundary, jurisdiction was directed court to to convene a which resolved by Congress, under its auspices. resolve such disputes L or for a provide for any federal judiciary Articles did not Court, Supreme (complaining of “[a] circumstance, which crowns the defects of the confederation . . . the defects of the confederation . . circumstance, the (complaining of which crowns “[a] power”). judiciary a want of Mo. v. Ill., 180 U.S. 208, 220–21 (1901) (quoting Articles of Confederation). (quoting (1901) 220–21 U.S. 208, v. Ill., 180 Mo. assembled shall also be the last resort on appeal in all disputes and differences now two or more states concerning boundary, subsisting, or that hereafter may arise, between by Articles also provided for procedures The whatever.”). other cause jurisdiction, or any would be presented to and resolved by Congress. which such disputes Cases and drafts). 39639-aap_18-1 Sheet No. 17 Side A 11/15/2017 09:50:50 A 11/15/2017 17 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 17 Side B 11/15/2017 09:50:50 ROCESS P RACTICE ANDRACTICE at the time the at the time P 20 , By agreeing to these By agreeing to 17 PPELLATE A 19 note 7, at 548. supra OURNAL OF OURNAL J ) 11/8/2017 6:08 PM . 80 Hamilton) at 538 (Alexander 1961). ed., Cooke (J.E. .81, HE O O N N ELETE D United States v. Texas OT —and that would properly recognize the dignity —and that would properly recognize . art. I, § 10. 10. I, § . art. N When the states ratified the Constitution and and the Constitution the states ratified When O 18 Ga. v. Penn. R.R., 324 U.S. 439, 450 (1945). 450 (1945). U.S. 439, Penn. R.R., 324 Ga. v. 16 ONST 1(D EDERALIST EDERALIST F F HE HE ESEND See, e.g., See, e.g., For this reason, it was essential to the States and to the For this reason, it was essential The context of the States’ entry into the United States the United States entry into of the States’ The context R B. Rationale Behind Original Jurisdiction for State Disputes State Disputes for Jurisdiction Original Behind B. Rationale 20. (1862). 621 143 U.S. 19. T 18. T 16. 17. C U.S. INSLEY Constitution was adopted, there already were controversies was adopted, there already were controversies Constitution their boundaries, which disputes between eleven states as to and it of the colonies,” settlement the first from “had continued to have a national tribunal “for the essential was deemed and sovereignty of each involved State. As Hamilton further State. As Hamilton and sovereignty of each involved dignity [of the states] to be turned [the] noted, it would “ill suit over to an inferior tribunal.” be provided to of the Union that a mechanism preservation and inevitably would arise resolve disputes that already existed, As the Court States. the among between and in the future, recounted in makes clear why the Court’s original jurisdiction was so crucial. so crucial. was jurisdiction Court’s original clear why the makes federal of the the formation Before were the states union, at least the theoretical as such, had sovereigns, and, separate war or by themselves among disputes ability to resolve negotiation. these the Union, they expressly relinquished thereby joined disagreements for settling law means international customary of the Article I, Section 10, sovereigns. Constitution among or any Treaty, Alliance, into State shall enter states that “[n]o the Consent and that “[n]o State shall, without Confederation,” with or Compact . enter into any Agreement of Congress, . . in War.” . . . or engage another State, of their ability States gave up a significant part restrictions, the and it arise between them, any differences that might to resolve alternative an provide them was essential that the Constitution the use of the of resolving disputes that would not require means as Alexander states—because, courts of one of the involved ought certainly to be a judge in his explained, “no man Hamilton own cause” 26 T 26 L 39639-aap_18-1 Sheet No. 17 Side B 11/15/2017 09:50:50 B 11/15/2017 17 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 18 Side A 11/15/2017 09:50:50 21 .L. HI By 24 Rhode , 56 U. , 56 C 27 25 TATES S ETWEEN B 23 As the Court explained in Court explained As the 22 ONTROVERSIES , a complaining state, state, , a complaining —C ) 11/14/2017 2:14 PM ., 37 U.S. at 720–21. at U.S. ., 37 R.I. v. Mass., 37 U.S. (12 Pet.) 657, 723–24 (1838) (describing (1838) 657, 723–24 (12 Pet.) 37 U.S. Mass., v. R.I. ELETE D OT , 37 U.S. at 726 (noting that “[f]ew, if any,U.S. at 726 (noting that “[f]ew, will be made, when it is , 37 left N see also see also O R.I. v. Mass R.I. v. n. 14, at 558. Professor Amar advocates an alternative view—that the Amar advocates an alternative Professor 14, at 558. n. , URISDICTION 2(D J e.g. , supra . at 625; , Section 13, and the Original Jurisdiction of the Supreme Court Jurisdiction of the Supreme Original 13, and the , Section ESEND Id R.I. v. Mass. See [b]ound hand and foot bythe of hand and foot prohibitions the [b]ound treat, agree, or fight with its . can neither . . [C]onstitution adversary, [C]ongress: without the consent of a resort to the the onlyjudicial power is means left for legally adjusting, of disputed state which has possession or persuading a compact, relating to territory, or to enter into an agreement a controverted boundary. R . is beyond the A full analysis of these competing views 489–90 (1989). 443 469–78, 21. 23. 22. Cal. v. Ariz., Pfander advocates the view that (1979). Professor 65–66 59, U.S. 440 24. “inherent (2015) (recognizing 1052 1042, S. Ct. 135 U.S. ___, ___ Neb., Kan. v. 25. RIGINAL EV INSLEY R consenting to the Constitution, the States agreed to this method agreed to this method States consenting to the Constitution, the and thereby gave up them, of resolving any disputes between suit. from immune part of their sovereign right to be Island v. Massachusetts Island v. forum Court as the impartial Supreme the Article III established and serve the dignity of sovereigns accord them for the States, to of controversies settlement for the diplomatic as a “substitute force.” and a possible resort to between sovereigns O arise.” might that controversies like and these of settlement a Court, as the Supreme to role III delegated this Article the parties to the dignity of to “match national tribunal superior, the court.” of the status L scope of this article. scope of nature of disputes). nature of disputes). the true purpose of the original jurisdiction clause of Article III was not to provide a against the States. lawdignified forum, but rather to ensure that federal would be enforced Pfander, a desire to establish a geographically by Court’s original jurisdiction was largely driven convenient and neutral forum for States and foreign diplomats. Akhil Reed Amar, Marbury to the pleasure of the state in possession; but when it is known that some tribunal it is but when can to the pleasure of the state in possession; by compact”). will be settled decide on the right, it is most probable that controversies authority, as part of the Constitution’s grant of original jurisdiction, to equitably apportion interstate streams between States,” and exercising original jurisdiction in action to seeking compact originally allowed). water than interstate Nebraska to appropriate more allow 39639-aap_18-1 Sheet No. 18 Side A 11/15/2017 09:50:50 A 11/15/2017 18 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 18 Side B 11/15/2017 09:50:50 28 — , 440 , 440 29 is the is ROCESS . 625, 632 P EV This last , 46 Cath. U. Congressional Congressional 26 Yet no such .L.R 27 INN see also Cal. v. Ariz. also Cal. v. see RACTICE ANDRACTICE Kentucky v. Dennison Kentucky , 86 M P overruled on other grounds by Julian Velasco, note 7, at 552; The Francis Wright, 105 552; The Francis at note 7, PPELLATE A see generally supra . 81, O N Lurking in the Shadows of Judicial Process: Special the Shadows in Lurking OURNAL OF OURNAL J Original Jurisdiction Jurisdiction Original ) 11/8/2017 6:08 PM 30 HE ELETE EDERALIST F D OT HE . art. III, § 2, cl. 2. 2. 2, cl. III,. § art. 2, cl. 2. III,. § art. N O , T ONST ONST 1(D C. Congress’s Power with Respect to the Court’s the Court’s to with Respect Power C. Congress’s ESEND See, e.g. The text of Article III significantly curtails the power of curtails the power significantly of Article III The text R 27. 29.Carstens, Anne-Marie C. 26. C U.S. 28. C U.S. 30. 98 (1861), 66, (24 How.) 65 U.S. Dennison, Ky. v. INSLEY Masters in the Supreme Court’s Original Jurisdiction Cases U.S. 381, 386 (1881); Ex Parte McCardle, 74 U.S. 506, 514–15 (1869). The extent of (1869). The extent 514–15 U.S. 506, Ex Parte McCardle, 74 386 (1881); U.S. 381, the Court’s appellate to limit Congress’s power jurisdiction on specific subject matters has of some academic debate, been the subject Control Over Federal Court Jurisdiction: A Defense of the TraditionalControl Over Federal Court Jurisdiction: A View of this article. the scope beyond that issue is but (1997), 671 L. Rev. in the sense that “in all cases where original jurisdiction is given in the sense that “in all cases where is given original jurisdiction . . to authority Court “has the Supreme by the Constitution,” . act of Congress to exercise it without any further confer jurisdiction.” Congress to limit or expand the Court’s original jurisdiction. jurisdiction. original Court’s or expand the to limit Congress “shall have appellate that the Court Section 2, states Article III, and and Fact, with such Exceptions, as to Law Jurisdiction, both as the Congress shall make.” under such Regulations two heads of between the textual distinction Based on this clear that the original been held it has long the Court’s jurisdiction, unassailable by Congress” jurisdiction is “self-executing and 28 T 28 jurisdiction, which states the grant of original caveat qualifies other public all Cases affecting Ambassadors, broadly that “[i]n State shall be a and those in which a Ministers and Consuls, jurisdiction.” Court shall have original Party, the supreme L and to limit been read to allow Congress clause has long the Court’s appellate jurisdiction. otherwise define U.S. at 65 (indicating that Supreme Court’s original jurisdiction that Supreme Court’s U.S. at 65 (indicating is effective automatically (1854) (stating that 492 How.) 478, U.S. (17 58 without legislativeGa., authority); Fla. v. “the omission to legislate on the subject could not deprive the court of the jurisdiction legislation by congress, the court in the absence of any itself conferred . . . and was authorized to prescribe its mode and proceeding, so as to accomplish the ends form of for given”). jurisdiction was which the (2002) (citing Chisholm v. Ga., 2 U.S. (2 Dall.) 419 (1793)); 419 Dall.) U.S. (2 2 Ga., v. (2002) (citing Chisholm P.R. v. Branstad, 483 U.S. 219, 230 (1987) (declaring that “ (1987) (declaring 230 U.S. 219, Branstad, 483 P.R. v. product of another time” and “may stand no longer”). stand no longer”). time” and “may another product of 39639-aap_18-1 Sheet No. 18 Side B 11/15/2017 09:50:50 B 11/15/2017 18 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 19 Side A 11/15/2017 09:50:50 HE T , 5 U.S. at , 5 U.S. at 29 OURTS AND C Marbury was the first to to the first was TATES 31 S EDERAL F HE T ETWEEN S ’ B Paul M. Bator, Paul J. Mishkin, David L. Paul M. Bator, Paul J. Mishkin, David ECHSLER &W Marbury v. Madison v. Marbury ONTROVERSIES ART See generally 34 —C ) 11/8/2017 6:08 PM Congress enacted this understanding in the Congress enacted this 35 ELETE D OT And because Marbury was neither an ambassador was neither an ambassador And because Marbury 242–44 242–44 (2d ed. 1973). The Court found that this aspect of the Judiciary that this aspect of the Judiciary The Court found N O 33 32 ,that Court is (acknowledging 469 (1884) 449, U.S. 111 v. Kan., Ames URISDICTION 1(D J YSTEM at 189 (“Thus, the particular phraseology of the constitution of the at 189 (“Thus, United States S at 174 (“If congress remains at liberty to give this court appellate jurisdiction, remains at liberty to give congress at 174 (“If ESEND Id. Id. Id. See, e.g. Although the Court repeatedly has stated that Congress Although the Court repeatedly The seminal case of case seminal The R 31. (1803). 137 Cranch) 5 U.S. (1 32. 33. 34. 35. RIGINAL EDERAL INSLEY F nor a State, he was not entitled to invoke the Court’s original the Court’s original he was not entitled to invoke nor a State, jurisdiction. provided that the Court would first Judiciary Act of 1789, which over “all controversies have exclusive and original jurisdiction enforce this understanding by holding unconstitutional a part of a by holding unconstitutional this understanding enforce to grant the Supreme that purported Act of 1789 the Judiciary concluding After of mandamus. writs power to issue Court the an act of would be such a writ necessarily of issuance that the Marshall Justice not “appellate”—jurisdiction, “original”—and grant such could not constitutionally declared that Congress those among power was not mandamus power, as the as part of the Court’s original in Article III enumerated jurisdiction. was therefore and with the Constitution Act of 1789 conflicted time the establishing for the first unconstitutional—famously as inconsistent to strike down an act of Congress Court’s power with the Constitution. jurisdiction, it long original or expand the Court’s not limit may aspects of make certain may has been understood that Congress concurrentthe Court’s original jurisdiction that of the state with not directly addressed by the or lower federal courts—a point text of Article III. O L where the constitution has declared their jurisdictionwhere the constitution has declared their shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of substance.”). without constitution, in the is form jurisdiction, made confirms and strengthens the principle, supposed to be essential to all written constitutions,be essential to all written to supposed confirms and strengthens the principle, is void; and that courts, as well as other that a law repugnant to the constitution by that instrument.”). bound departments, are the inferior courts of grant to to Congress of “unable to say that it is not within the power the been vested by Court has the Supreme the United States jurisdiction in cases where constitution with A frequently noted dictum in original jurisdiction.”). 174, could be read to suggest that the Court’s original jurisdiction in its entirety was or exclusive of the states, by Congress been the understanding adopted that has but never later decisions of the Court. Shapiro & Herbert Wechsler, H Shapiro & Herbert 39639-aap_18-1 Sheet No. 19 Side A 11/15/2017 09:50:50 A 11/15/2017 19 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 19 Side B 11/15/2017 09:50:50 39 the 41 —and ROCESS P 36 In 1884, the 38 RACTICE ANDRACTICE P Congress’s consistent 40 The current version of this of this version The current 37 PPELLATE A OURNAL OF OURNAL J ) 11/8/2017 6:08 PM HE ELETE note 36, at 73, § 13. 13. 73, § at 36, note D OT N supra O 1(D , 111 U.S. at 464. U.S. at , 111 rs v. Preston, 111 U.S. 252, 260 (1884). (1884). 260 U.S. 252, 111 rs v. Preston, ऺ ESEND Id. Ames Consistent with the nonexclusive nature of certain heads of nature of certain heads of Consistent with the nonexclusive R 41. 1789 Act, 36. An Act to Establish the Judicial Courts § 13 (Sept. of the United States, 1 Stat. 73, 37. 38. 1251(a). § 28 U.S.C. 39. B 40. INSLEY 24, 1789) [hereinafter 1789 Act]. Act]. [hereinafter 1789 24, 1789) provision for concurrent original jurisdiction over broad provision for concurrent original Article III as part of the in subjects identified categories of has significantly narrowed the range jurisdiction Court’s original exercise to it appropriate the Court finds over which of matters that jurisdiction. the Court has imposed its own the Court’s original jurisdiction, scope of that jurisdiction. Although the literal on the limitations original jurisdiction to authorize text of Article III would appear to always a party is almost a State cases—because over criminal in the Judiciary Act of 1789 such cases—and although Congress jurisdiction over civil provided for nonexclusive original citizens of other States, controversies between a State and entertain it had no power to early cases that clear in Court made its own penal statutes, even an action by a State to enforce original but nonexclusive jurisdiction over controversies over controversies jurisdiction but nonexclusive original brought state or actions of another a state and citizens between or foreign officials. by ambassadors nonexclusive the then-extant provisions for Court held that text with the consistent Court were in the Supreme jurisdiction reserve the to meant was Court found the of Article III—which a high level of carrying for matters jurisdiction Court’s original petty claim of even less not to require it to hear “a importance, “had been the defendant because merely than five dollars” with the consular office,” government foreign clothed by some to present any and all State or an ambassador or to require a grievances in “this one tribunal.” 30 T 30 or actions any over and a party” a state is where nature, civil of a officials foreign or against ambassadors proceedings Court’s to which the the cases as further narrows provision to that class limiting shall be “exclusive,” original jurisdiction between two or more states.” “all controversies L 39639-aap_18-1 Sheet No. 19 Side B 11/15/2017 09:50:50 B 11/15/2017 19 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 20 Side A 11/15/2017 09:50:50 44 The Court The 31 42 TATES TATES S S Ga. v. Pa. R. Co., 324 U.S. 439, v. R. Co., Ga. Pa. Congress has codified Congress has ETWEEN 45 B ETWEEN see also see B —an aspect of the Court’s 47 43 CTIONS A , 127 U.S. at 290–94 (discussing early precedents). (discussing early precedents). U.S. at 290–94 , 127 ONTROVERSIES —C ) 11/8/2017 6:08 PM RIGINAL ELETE D 46 OT . art. III, § 2, cl. 1. III, § . art. N O III. O Pelican Insurance Pelican , (refusing 160 (1922) 158, U.S. Interstate Commercev. Comm’n, 258 Tex. , U.S. v. La., 339 U.S. 699, 700 (1950) (recognizing the rights of the United United the rights of the (recognizing (1950) 700 U.S. 699, 339 La., v. U.S. , , ONST URISDICTION 1(D J e.g. , . at 289–91 (surveying authorities, among them The Antelope, 23 U.S. (10 (10 U.S. 23 Antelope, among them The authorities, (surveying . at 289–91 ESEND See See, e.g. Id See, e.g. One aspect of the Court’s original jurisdiction that has been One aspect of the Court’s original The Court also has clarified other aspects of original of original other aspects also has clarified The Court R 46. 1251(b). § 28 U.S.C. 47. U.S. C 45. 42. 43. 44. RIGINAL INSLEY to exercise original jurisdiction over a claim by a State against two federal agencies the same relation to one “citizens of any state, but ha[d] were not because the defendants state as to another”). States against Louisiana for property along the State’s coast); U.S. v. Tex., 143 U.S. 621, U.S. 143 Tex., v. State’s coast); U.S. States against Louisiana for property along the State in the dispute supports original a that the presence of (reasoning 643–46 (1892) judicial power). creates federal States United the of the presence jurisdiction and that Wheat.) 66, 123 (1825), in which Chief Justice Marshall famously declared that “the courts in which Chief Justice Marshall 123 (1825), Wheat.) 66, another”); the penal laws of of no country execute to bring claims for States does not allow that original jurisdiction 446 (1945) (recognizing State penal statutes). the enforcement of original jurisdiction that both the Court and Congress haveoriginal jurisdiction that both exclusive of other courts. The Court has consistently deemed over exclusive jurisdiction read the text of Article III to require cited the longstanding rule, grounded in English precedents and precedents in English grounded rule, longstanding cited the the penal enforce a sovereign cannot law, that in international of another sovereign. statutes Court has original providing that the Supreme these holdings by between the jurisdiction over controversies but not exclusive citizens the a State against a State, actions by United States and or ambassadors involving and proceedings of another State, foreign consuls. role of deciding “Controversies a constant over the years is its States” or more between two O civil penalty. of form sought some the State where of the relates to the relationships as it particularly jurisdiction, nonexclusive has held that it has original, parties. The Court United States, cases between a State and the jurisdiction over to cases jurisdiction does not extend original but that the and federal agencies. between States L 39639-aap_18-1 Sheet No. 20 Side A 11/15/2017 09:50:50 A 11/15/2017 20 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 20 Side B 11/15/2017 09:50:50 , 49 , 440 Fla. v. Fla. ROCESS Many P ]. Based on ]. 52 The two . 53 Cal. v. Ariz. Stanford Note RACTICE ANDRACTICE Stanford Note —involved property P The Court held that, in in that, The Court held and Congress—from the Congress—from and 50 48 PPELLATE A Mo. v. Ky., 78 U.S. (11 Wall.) 395 (1870); Va. Va. (1870); 395 U.S. (11 Wall.) 78 Ky., Mo. v. Miss. v. La., 506 U.S. 73, 76–78 (1992) (discussingMiss. v. La., 506 U.S. 73, 76–78 see also see 51 OURNAL OF OURNAL J see also , 37 U.S. at 720–21. at U.S. , 37 ) 11/8/2017 6:08 PM The Original Jurisdiction of the United States Supreme Court Supreme Original Jurisdiction of the United States The HE New York v. Connecticut ELETE D Note, OT . 665 (1959) (indicating that 123 cases had been decided by 1959, that 123 decided by 1959, had been cases . 665 (1959) (indicating N O R.I. v. Mass. R.I.v. EV , the ConstitutionU.S. 1, 16 (1900) (“[B]y and according 176 Tex., La. v. , 1(D e.g. , .L.R ESEND See, e.g. See Id. See generally Over the years, disputes between States have represented States have represented between Over the years, disputes R A. Early Cases: Boundary Controversies Between States Boundary Controversies Between A. Early Cases: TAN 53. (1799); 2 Dall.) 1, 4 U.S. (4 48. 49. § 1251(a); 28 U.S.C. 52. 50. 51. INSLEY discussing relevant list of law, and providing cases) [hereinafter the Court’s docket and numberingauthor system, the estimates that about forty-seven in the reported the count filed since been additional cases have of the earliest such cases—including the first reported original original first reported the cases—including of the earliest such case, jurisdiction over interstate boundaries. disputes or controversies light of the history and rationale underlying the original and rationale underlying light of the history waived the relevant the States implicitly clause, jurisdiction ratified the when they sovereign immunity aspects of their mechanism resolution to the dispute and agreed Constitution III. provided by Article cases, and jurisdiction of the Court’s original the vast majority But even so, most important. also likely would be viewed as the by the 1990s, the Court had entertained are small: the numbers jurisdiction cases. and decided only about 170 original 32 T 32 States, or more two between disputes up closely bound grant was of the constitutional The exclusivity in its original early conclusion—reached Court’s with the enjoy sovereign States did not jurisdiction jurisprudence—that jurisdiction the Court’s original the exercise of immunity from with other States. over controversies L the question never tested present—has Act to the first Judiciary over jurisdiction other than exclusive for anything by providing rule. of the in the current codification as reflected such cases, v. W. Va., 78 U.S. (11 Wall.) 39 (1870); Ala. v. Ga., 64 U.S. (23 How.) 505 (1860); (23 64 U.S. Ga., v. (11 Wall.) 39 (1870); Ala. U.S. 78 Va., v. W. to the statute, jurisdiction of this court the original is exclusive over suits between states, state.”). another citizens of and state a between over those exclusive though not early cases and concluding that description “the as ‘exclusive’ of our jurisdiction necessarily denies jurisdiction of such federal court”); cases to any other U.S. at 63 (noting that “a district court could not hear [California’s] claims against Arizona, claims [California’s] court could not hear that “a district U.S. at 63 (noting claims”). over such jurisdiction has exclusive Court because this 11 S 39639-aap_18-1 Sheet No. 20 Side B 11/15/2017 09:50:50 B 11/15/2017 20 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 21 Side A 11/15/2017 09:50:50 , e.g. 57 , Pelican See , 37 U.S. 657; 657; U.S. , 37 58 33 TATES S R.I. v. Mass. ETWEEN B 59 , 176 U.S. at 18 (noting that, “[a]s might “[a]s at 18 (noting that, U.S. 176 , The case thus involved not the thus involved The case The Supreme Court refused to Court refused The Supreme 55 56 but Connecticut then conveyed the then conveyed but Connecticut 54 , 176 U.S. at 22–23 (dismissing for lack of original , 176 U.S. at ONTROVERSIES see also La. v. Tex. —C ) 11/8/2017 6:08 PM La. v. Tex. La. v. , 127 U.S. at 288. U.S. at , 127 ELETE D ,U.S. at 3. 4 OT N O URISDICTION 1(D J at 6 (explaining that, “as the State of New York was not a party to the at 6 (explainingNew York suits that, “as the State of at 4. )). In addition to addressing boundaries, a handful of early interstate cases of a handful addition to addressing boundaries, )). In . (citations omitted); ESEND Id. Pelican Insurance N.Y. v. Conn. v. N.Y. Id. Id. Id controversies between two states as to the boundaries of two states as to the boundaries controversies between the before as were determined their territory, such Revolution by in council, and under the Articles of the king there was no national judiciary)Confederation (while by committees or commissioners appointed by congress. As the Court observed in 1888, the “most numerous class” numerous in 1888, the “most As the Court observed R ., 58 U.S. 478; Mo. v. Iowa, 48 U.S. (7 How.) 660 (1849); (7 How.) U.S. 48 Mo. v. Iowa, 478; ., 58 U.S. 57. 58. 54. 55. 56. 59. RIGINAL INSLEY S.D. v. N.C., 192 U.S. 286, 321 (1904) (enforcing North Carolina’s obligation to pay on North Carolina’s obligation to pay on (enforcing 321 (1904) 286, U.S. S.D. v. N.C., 192 bonds to South Dakota); support the claim that one State authorized its health did not the facts jurisdiction because embargo in fact on all interstate commerce an officer to issue a quarantine that “place[d] (1883) 76, 91 U.S. 108 La., Texas”); N.H. v. the state of between the state of Louisiana and claims for debts on behalf of private Hampshire’s (denying original jurisdiction on New individuals against Louisiana). Ga boundary between States, but “the right of soil, which . . . results . . of soil, which but “the right between States, boundary the right of jurisdiction.” from books of reports contain but noted that “[t]he Indeed, the Court of this court has been invoked few other cases in which the aid in controversies between two states.” O granting agreement into an entered case had first in that States York, to New certain lands absence in the New York’s holding that uphold the injunction, adjudication. it of a fair proceeding deprived prior state court of entertained by the Court consisted of original cases L injunction in its and obtained an individuals land to private same grant. to enforce the own courts below, nor interested in the decision of those suits, an injunction ought not to issue”). ought injunction suits, an decision of those interested in the below, nor N.J. v. N.Y., 30 U.S. N.J. (5 Pet.) (1831). 284 be expected in view of the nature of the jurisdiction, the cases are few in which the aid of the court has been States,’” and also sought in ‘controversies between two or more recognizing that they were “chiefly controversies as to boundaries” (citing Insurance of quarantine regulations. the enforcement of bonds and addressed the payment 39639-aap_18-1 Sheet No. 21 Side A 11/15/2017 09:50:50 A 11/15/2017 21 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 21 Side B 11/15/2017 09:50:50 South ROCESS parens P 10031979) (5th ed. RACTICE ANDRACTICE P ICTIONARY but there existed early early existed but there D 60 AW L S , that the jurisdiction might , that the jurisdiction might PPELLATE ’ A LACK —but rather encompassed only cases in —but rather encompassed OURNAL OF OURNAL J 61 It was only in 1900 that the Court first It was only in ) 11/8/2017 6:08 PM 63 HE The Court firmly embraced that conclusion that conclusion embraced The Court firmly as “a concept of standing utilized to protect those quasi-sovereign as “a concept of standing utilized to protect those ELETE 64 at 22–23 (asserting that “this bill does not set up facts which show show up facts which that “this (asserting bill does not set at 22–23 D Louisiana v. Texas Id. OT capacity, finding that the action not involve a justiciable dispute did 176 U.S. at 24 (Harlan, J., gave concurring) (“When the Constitution , 143 U.S. at 640 (“[T]hat a controversy between two or more states, in or a controversy two between at 640 (“[T]hat U.S. 143 , N , 176 U.S.176 , to at 19 (recognizing that Louisiana believed itself “entitled , O Of course, boundary disputes were of precisely such disputes were of Of course, boundary , U.S. v. Tex., 143 U.S. 621 (1892). (1892). 621 U.S. 143 Tex., v. , U.S. 62 1(D capacity. parens patriae parens patriae ESEND See, e.g. La. v. Tex. U.S. v. Tex. U.S. La. v. Tex. It is not surprising that most of the Court’s early disputes early disputes most of the Court’s that surprising It is not R parens patriae 60. 61.B “parent of the country.” Literally, 62. 63. 64. B. Expansion of Court’s Jurisdiction Beyond Boundary Cases Cases Boundary Beyond Jurisdiction of Court’s B. Expansion INSLEY (defining interests such as health, comfort and welfare of the people, interstate water rights, general like). the and the state,” economy of a proprietary character, so it is not surprising that no question so it is not surprising that a proprietary character, the disputes fell squarely within but that such was raised grant. jurisdictional suggested, in interests of its citizens in a a State to represent the permit patriae 34 T 34 and related issues. disputes boundary states addressed between at disputes brewing of such number were there a large Not only adopted, was the Constitution the time “the property or the affecting asserted rights which the State state in its sovereign or corporate powers of the complaining capacity.” L a State’s right to view that a strong in the Court’s jurisprudence suits in which jurisdiction did not extend to invoke the Court’s is, to to vindicate the rights of its citizens—that the State sought act as this court jurisdiction of controversies between states, it did not thereby authorize a state to bring another state to the bar of thiscourt for the purpose of testing the constitutionality of of the complaining or the powers do not affect the propertylocal statutes or regulations that state in its sovereign or corporatewhich at mostbut affect capacity, only the rights of engaged in interstate commerce.”). individual citizens or corporations respect to boundary, is one to which, under the constitution, such judicial power extends, is is power extends, constitution, such judicial the under which, to is one respect to boundary, question in this court.”). open an no longer seek relief mattersin this complained of affect her way because the citizens at large,” but these not one presenting a controversy between also recognizing that “if the case stated is this court as against the states, the exercise of original jurisdiction by state of Texas cannot right to proceed Louisiana’s claimed ultimately did not pass on Court The be maintained”). in a States. between the the alleged action of her health authorized or confirmed that the state of Texas has so follows that which it necessarily the two states are in or from officer as to make it her own, controversy within the meaning of the Constitution”). In earlier had cases, the Court declined to decide whether a complaining State had to assert its own proprietary interests, In interests or the interests of its citizens. rather than more general sovereign 39639-aap_18-1 Sheet No. 21 Side B 11/15/2017 09:50:50 B 11/15/2017 21 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 22 Side A 11/15/2017 09:50:50 decline at 14. In at 14. Id. 35 Louisiana v. , 200 U.S. 496 (1906), 496 (1906), , 200 U.S. TATES S Missouri filed that that filed Missouri 65 . ETWEEN B Missouri v. Illinois . at 382. . at 382. Id 67 ONTROVERSIES Missouri v. Illinois v. Missouri —C ) 11/8/2017 6:08 PM ELETE D , 93 U.S. 4, 4 (1876), South Carolina sought to enjoin Georgia, the (1876), South Carolina sought to the 4, 4 enjoin Georgia, , 93 U.S. , 96 U.S. 379 (1877), the Court did not address (1877), the Court did not the contention that, 96 U.S. 379 it OT N O URISDICTION 1(D J This was a significant expansion of the powers that the expansion of the powers This was a significant 66 . at 241. . at 241. ESEND C. Court’s Discretion to Decline Original Jurisdiction Jurisdiction Original C. Court’s Discretion to Decline Id As the Court began to expand the class of cases that it As the Court began to expand R 65. 208 (1901). 180 U.S. 66. 67. in reported The subsequent proceedings, RIGINAL INSLEY deemed properly within its original jurisdiction, an important an important jurisdiction, original its properly within deemed had discretion to question arose as to whether Court Carolina v. Georgia or interrupting” the navigation of the Secretary of War, and others, from “obstructing of any showing of an unlawful obstruction,In dismissing the bill for want Savannah River. in asserting such a claim, must “aver and the Court reserved the question whether a State, show that it will sustain some special and peculiar and such as would injury therefrom, enable a private person to maintain a similar action in another court.” action against Illinois and the Sanitary District of the City of the City District of the Sanitary Illinois and against action that disposing of waste Chicago was complaining that Chicago, the detriment River, to the Mississippi its way down was finding The along the river. owned property of Missouri who of citizens the was not within action the that the contention Court rejected holding that “if Court’s original jurisdiction, cognizance of the a state are of comfort of the inhabitants the health and and defend is the proper party to represent threatened, the state them.” as in boundary and had exercised—such Court previously interests the States’ own proprietary property disputes—where the State of Missouri to And by permitting were at stake. entertained its first interstate the Court action, proceed with its case. pollution abatement qualified for original that otherwise over a matter jurisdiction the governing statute. Not jurisdiction under Article III and the Court’s docket that might surprisingly, given the burden on question was answer to that otherwise have resulted, the Court’s as controversies between States, in yes—even in cases, such state or lower exclusive of the which its jurisdiction was deemed explained in federal courts. In 1900, the Court O in year following the L Wisconsin v. Duluth could “take cognizance of no question which concerns alone the rights of a State in her political or sovereign character; that to sustain the suit she must proprietaryhave some defendant.” affected by the interest which is are discussed below. are discussed below. 39639-aap_18-1 Sheet No. 22 Side A 11/15/2017 09:50:50 A 11/15/2017 22 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 22 Side B 11/15/2017 09:50:50 The 77 ROCESS P 71 —both of which 74 RACTICE ANDRACTICE P The Court consistently consistently The Court and making original and making 68 70 PPELLATE A The Court has said that its said that its The Court has , 406 U.S. at 93). at 93). U.S. , 406 73 As the Court has explained, “‘[t]he As the Court has explained, 76 OURNAL OF OURNAL with a focus on the “seriousness and and with a focus on the “seriousness J if the States were fully sovereign.’” were fully if the States Later, the Court made clear that the same that the same clear made Later, the Court ) 11/8/2017 6:08 PM 75 HE and has interpreted both Article III and the the Article III and interpreted both and has 72 69 ELETE , 506 U.S. at 76 (1992); Wyo. v. Okla., 502 U.S. 437, 450 (1992); (1992); 450 437, U.S. Okla., 502 v. Wyo. at 76 (1992); 506 U.S. , , 506 U.S. at 77 (citing Ohio v. Wyandotte Chems. Corp., 401 U.S. Corp., 401 Chems. Wyandotte (citing Ohio v. at 77 506 U.S. , D OT City of Milwaukee N , 176 U.S. at 15. , 176 O casus belli at 77 (citing Ariz. v. N.M., 425 U.S. 794 (1976), Cal. v. W. Va., 454 U.S. Va., 454 v. W. Cal. (1976), N.M., 425 U.S. 794 at 77 (citing Ariz. v. at 77 (1992) (describing factors). (1992) at 77 1(D (quoting Mass. v. Mo., 308 U.S. 1, 18 (1939)). 1, 18 U.S. 308 Mo., v. Mass. (quoting (quoting . (quoting Tex. v. N.M., 462 U.S. 554, 571, n.18. (1983)). (1983)). n.18. 571, 554, U.S. 462 N.M., v. Tex. . (quoting ESEND that the original jurisdiction “is of so delicate and grave a and grave delicate of so “is jurisdiction the original that See Miss. v. La. See Miss. v. See Miss. v. La. See Miss. v. See id. Id. Id. See id. La. v. Tex. Id The Court initially exercised its discretion not to accept not to accept its discretion exercised The Court initially R 68. 69. 70. (1983). 570 554, U.S. 462 N.M., Tex. v. 71. (1972). 93 91, U.S. 406 Milwaukee, Ill. v. City of 72. 73. 75. 76. 74. 77. INSLEY Md. v. La., 451 U.S. 725, 739 (1981); Ariz. v. N.M., 425 U.S. 794, 796 (1976). (1976). 794, 796 U.S. 425 N.M., Ariz. v. (1981); 739 U.S. 725, 451 v. La., Md. follow directly from the historical rationale for the jurisdiction. rationale for the jurisdiction. the historical follow directly from looks to “the nature of the interest of the First, the Court State,” complaining determination as to whether a case is “appropriate” for original is “appropriate” for original as to whether a case determination will be guided by two factors jurisdiction dignity of the claim,” is jurisdiction original Court’s model case for invocation of this States of such seriousness that it would a dispute between to amount original jurisdiction in the context of actions falling within its in the context of actions falling original jurisdiction by States jurisdiction, such as actions nonexclusive original between the United and actions of other States, against citizens States and a State. jurisdiction even over disputes it to decline discretion allowed always has in which its original jurisdiction between States, been deemed exclusive. is forum whether an alternative will consider Court also can be resolved—a factor available in which the controversy 36 T 36 Texas discretion Court “substantial the statute as according operative necessity of as to the practical judgments case-by-case to make in this Court,” forum an original only in appropriate cases.” jurisdiction “obligatory L be exercised that it would contemplated not it was that character absolute.” was the necessity save when be exercised should jurisdiction that its original has repeated only “sparingly,” 493 (1971), and U.S. v. Nev., 412 U.S. 534 (1973)). (1973)). U.S. 534 412 Nev., U.S. v. and 493 (1971), 1027 (1981), and Tex. v. N.M., 462 U.S. 554 (1983)). (1983)). 554 U.S. 462 N.M., Tex. v. and 1027 (1981), 39639-aap_18-1 Sheet No. 22 Side B 11/15/2017 09:50:50 B 11/15/2017 22 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 23 Side A 11/15/2017 09:50:50 Ariz. Both 78 , the Court OWER P 37 79 TATES that the Court’s S 81 AWMAKING Arizona v. New Mexico L The Court ultimately The Court ultimately ETWEEN S B 80 ’ OURT C , 406 U.S. at 93). In at 93). U.S. , 406 ONTROVERSIES Kansas v. Colorado Kansas , 37 U.S. at 677, 717–18 (reproducing both argument by argument by (reproducing both at 677, 717–18 U.S. , 37 —C ) 11/8/2017 6:08 PM ELETE D OT N City of Milwaukee R.I. v. Mass. R.I. O , (resolving boundary issues (1922) 516, 518–19 U.S. 257 S.C., v. Ga. , URISDICTION EVELOPMENT OF THE EVELOPMENT 1(D J . (citing ESEND , U.S. at 425 797. Id See, e.g. See, e.g. One cardinal rule, underlying all the relations of the states of the all the relations One cardinal rule, underlying to each other, is that of equality of right. Each state stands As the limits of the Court’s jurisdiction expanded into areas expanded into areas jurisdiction of the Court’s As the limits Another important question that arose as the variety of that arose as the variety of question Another important R IV. D 78. 79. 80. 81. 46 (1907). 206 U.S. RIGINAL INSLEY declined to exercise its original jurisdiction, concluding that a pending state court action declined to exercise its original jurisdiction, a pending that concluding an appropriate forum in which be litigated.” the issues tendered . . . may “provide[d] v. N.M. disagreed, holding in disputes between States of resolving role crucial constitutional have to fashion “interstate that the Court may necessarily meant in the absence of other common law” to reach a resolution, controlling law: factors draw upon the historic and structural need for a forum in need for a forum and structural upon the historic factors draw serious disputes. most their can resolve which States some other external source, not governed by a treaty or some a jurisdictional grant III was merely that Article parties argued a case, and that the entertain that gave the Court the power to was reserved to law to provide a rule of decision power to make existed to resolve the matter, Congress—so that if no such law act. the Court was powerless to O be dispositive. always will not relevant, although that, expanded jurisdiction docket original the Court’s cases within law in affirmative make to the power Court had was whether the it or whether jurisdiction, its original the course of exercising law. This was or federal existing state to applying was limited cases, which typically arose in boundary not an issue that such as a grant by a formal document, governed generally were the crown or a prior such that the treaty between States, from the document. to interpret was role Court’s principal L between Georgia and South Carolina by reference to the 1787 Treaty of Beaufort); Ga.between Georgia v. (finally (1990) resolving 380–81 the State boundary by reference to 376, S.C., 497 U.S. Georgia). of letters patent chartering colony 1732 succeeded which Treaty, same 1787 counsel that Congress has the sole power to make federal law to govern such disputes and State’s argument). of Court’s acknowledgement 39639-aap_18-1 Sheet No. 23 Side A 11/15/2017 09:50:50 A 11/15/2017 23 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 23 Side B 11/15/2017 09:50:50 In Some 84 ROCESS P . 3 (2012). EV RACTICE ANDRACTICE P .L.R YO , 12 W PPELLATE A 83 OURNAL OF OURNAL J ) 11/8/2017 6:08 PM HE 82 ELETE D Kristin Linsley Myles, South Carolina v. North Carolina: OT N O 1(D . at 97–98 (citation omitted). (citation . at 97–98 the rule cannot determine . that because Congress . . not follow . at 95 (“It does ESEND Id Id See generally on the same alllevel with same on the rest. It the its own impose can its yield to is bound others, and the of on no one legislation of one . the action . . whenever to none. Yet, own views state reaches,agency into the natural laws, the through of the of the extent and question state, the of another territory becomes of the two states of the rights limitations a matter and this court is called between them, of justiciable dispute in such a way settle that dispute upon to as will recognize time establishand at the same of both the equal rights In other words, through these them. justice between successive disputes and decisions this is practicallycourt be called interstate what building up may not improperly law.” common It was based on this set of understandings that the Court It was based on this set of understandings clear that its made From the beginning, the Court R 82. 83. 84. INSLEY which shall control between the two states . . . the controversy ceases to be one of a ceases to be one of a controversy . the . . which shall control between the two states justiciable nature.”). The Court went so far as to state that its power to fashion federal that its power to fashion federal so far as to state The Court went its a critical part of in this area, being common law between resolve controversies and duty to constitutional power powers of Congress as beyond the limited States, extended in Article I. enumerated its most law in one of began to develop federal common of equitable of original jurisdiction—that areas complex river or waterway. of an interstate of the waters apportionment the States to Although these cases were of enormous importance issues requiring resolution, involved, and concerned complex limited. Court was extremely the precedent available to the existing federal law or other Indeed, because there is little and because matters, resolve water-apportionment guidance to of original jurisdiction no one by the very nature and purpose this area perhaps another’s, over State’s rules can prevail of the Court’s expansive manifestation represents the most of its original law powers within the scope federal common jurisdiction. the to the extent of one State’s rights to determine jurisdiction another State is very broad. waters of a river over those of 38 T 38 L Problems Arising in an East Coast Water Dispute East Coast Arising in an Problems 39639-aap_18-1 Sheet No. 23 Side B 11/15/2017 09:50:50 B 11/15/2017 23 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 24 Side A 11/15/2017 09:50:50 The 87 39 neatly captured neatly captured TATES S ETWEEN B The resulting inquiry for 89 Kansas v. Colorado Kansas v. Colorado ONTROVERSIES is very broad: 90 one of the earliest such cases to reach the reach the to cases such of the earliest one , —C ) 11/8/2017 6:08 PM 85 , ELETE D Colorado, for its part, claimed the right of its the right of claimed for its part, Colorado, OT 86 N O URISDICTION 1(D J 88 . at 85, 98 (stating, and then expounding upon, common law rule). common upon, expounding then and 98 (stating, . at 85, as “extreme”. at 98 (characterizing Colorado’s argument and pointing out that . at 100. . at 98. ESEND Id Id Id Id Priority of appropriation is the guiding principle. But principle. appropriation is the guiding of Priority use of physical consumptive conditions, the and climatic The Court’s solution in in solution The Court’s R 85.46. 206 U.S. 86. 87. 88. 89. 90. 589 (1945). 325 U.S. RIGINAL INSLEY “the appropriation of the entire flow of the river would naturally tend to make the lands would naturally tend to make the “the appropriation of the entire flow of the river . taking from the adjacent territory that which . . along the stream in Kansas less arable[,] its arable character”). preserving of customary natural means the had been resolving such water-apportionment matters, best summarized in summarized best matters, water-apportionment such resolving Nebraska v. Wyoming users under its doctrine of prior appropriation to take the entire to take the entire appropriation of prior users under its doctrine right to divert arguing that it had a sovereign flow of the stream, its boundaries, all water running through and use any and on Kansas. to any downstream impact without regard would be positions, holding that the dispute Court rejected both far secure as to of rights as of equality the basis resolved “upon without Colorado the benefits of irrigation as possible to like beneficial effects of a flowing of the depriving Kansas stream.” O v. Colorado Kansas the of waters of diversion Colorado’s challenged Court, Kansas claimed arid lands, and non-riparian River to irrigate Arkansas entitled to receive Kansas was common law, English that under any human “before existed as they of the river the flows interference.” L the original jurisdiction design of the unique constitutional is treated with dignity. This clause to ensure that each State that federal determination concern also drove the Court’s law of either state, common law, and not the underlying that A significant factor would govern the dispute. ultimately was that the two States applied affected the Court’s analysis for allocating law schemes different—and inconsistent—state The Court noted that a river. the waters of private rights from independent nations,” the “[i]f the two states were absolutely or by force,” but because dispute “would be settled by treaty be “must was possible, the dispute neither of these methods settled by decision of this court.” 39639-aap_18-1 Sheet No. 24 Side A 11/15/2017 09:50:50 A 11/15/2017 24 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 24 Side B 11/15/2017 09:50:50 , see see As 94 ROCESS P 95 and the Equitable and the RACTICE ANDRACTICE P Kansas v. Colorado it looks to numerous it looks to numerous . 1, 43 (2014) (quoting S.C. v. (quoting S.C. v. 43 (2014) . 1, 92 EV In , 320 U.S. at 393–94. at 393–94. U.S. , 320 93 . L. R PPELLATE RIZ A Colo. v. Kan. v. Colo. , 56 A 91 OURNAL OF OURNAL J ) 11/8/2017 6:08 PM HE Colo. v. Kan., 320 U.S. 383, 393–94 (1944) (discussing benefits (1944) (discussing 393–94 320 U.S. 383, Kan., Colo. v. ELETE D , 206 U.S. at 98. at 98. U.S. , 206 OT N accord O 1(D Vt. v. N.Y., 417 U.S. 270, 277 (1974) (noting that the original jurisdiction277 (1974) (noting 270, U.S. N.Y., 417 v. Vt. . at 618; ESEND Id Kan. v. Colo. See water in the several sections of the river, the character and the river, of sections in the several water uses, the extent of established flows, the rate of return availability water, of storage of wasteful the practical effect areas, uses on downstream tothe damage areas upstream as compared to if a downstream areas the benefits to relevant are all former—these on the is imposed limitation factors. They are not an exhaustive an illustrative merely of catalogue. Theyof the problem the nature indicate of interests delicate adjustment and the apportionment which must be made. More prominently, the Court frequently (but not always) the Court frequently More prominently, Although the Court has made clear that it is making federal clear that it is making has made Although the Court R Neb. v. Wyo., 325 U.S. 589 (1945); (1945); 589 U.S. 325 v. Wyo., Neb. 91. 92. (1982) (“Equitable apportionment is the doctrine 183 176, U.S. 459 N.M., Colo. v. 93. 94. Kan. v. (1902). 146–47 125, U.S. Colo., 185 95. INSLEY N.C., 558 U.S. 256, 277 (2010) (Roberts, C.J., dissenting)) (footnote omitted)). C.J., dissenting)) (Roberts, 277 (2010) 256, U.S. N.C., 558 of federal common law that governs disputes between states their rights concerning to use of an interstate stream.”). the water the of law, some drawn from States based on “principles between extends to adjudications the decades”); international field, over law’ formulated expressing a ‘common some also considers applicable state law in developing a federal common developing a federal common considers applicable state law in common law in resolving such disputes, common law in effort in an interstate disputes, of resolving sources as a means and at the same equal rights of both [States] to “recognize the them.” between establish justice time case, the Court particular depending on the the Court held that, law, and international law.” state law, considers “[f]ederal one would expect this to be afor international law, although disputes between States— highly valuable source for resolving degree—the sovereign entities to some which, after all, remain as frequently as one materials Court does not resort to such any such references as would expect, and generally frames law. of federal common the creation informing simply 40 T 40 L flowing from increased use of disputed water source, harms likely to result from its to State, and potentially be suffered by downstream corresponding harms withdrawal, and to determine endeavoring when is “necessary” caution” and serious also noting that “great whether each State’s case is proved). This equitable appropriation approach remains the by ensuring fair governing doctrine for “resolving between sovereigns” and high disputes California v. Arizona Patashnik, water divisions. Joshua evenhanded Waterways Interstate Apportionment of 39639-aap_18-1 Sheet No. 24 Side B 11/15/2017 09:50:50 B 11/15/2017 24 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 25 Side A 11/15/2017 09:50:50 , , 459 U.S. , 459 U.S. Neb. v. Wyo. Neb. v. 41 As the Court As the 98 TATES S : 99 In so doing, the Court the Court doing, In so See also Colo. v. N.M. 96 ETWEEN B In other interstate water disputes, In other interstate water disputes, , the Court declined to rely on either , the Court declined 100 Under these precedents, the Court’s Under these precedents, the Court’s , 406 U.S. at 107 (noting that state standards U.S. at 107 may be , 406 ONTROVERSIES , 259 U.S. 419, 465, 470 (1922), the Court applied the the Court (1922), 465, 470 419, U.S. , 259 102 , 282 U.S. at 670–71. at 670–71. , U.S. 282 —a rule that prevents the inequitable result result inequitable that prevents the —a rule —C ) 11/8/2017 6:08 PM 97 ELETE The Court also looks to state law where state The Court also looks to state law D 282 U.S. (citation omitted). at 670–71 282 , 206 U.S. at 98. at 98. U.S. , 206 , 206 U.S. at 98 (recognizing equal status of States). of States). equal status (recognizing at 98 U.S. , 206 OT 101 N Connecticut v. Massachusetts Connecticut City of Milwaukee O , URISDICTION 1(D J Wyoming v. Colorado Wyoming v. Kansas v. Colorado Kan. v. Colo. See, e.g., Conn. v. Mass. v. Conn. See, e.g., ESEND Kan. v. Colo. Conn. v. Mass. See, e.g. [T]his is not to say[T]his there that be must of an equal division the waters of through the States stream among an interstate which it flows. It of right and means that the principles level or the “equal to regard equity shall be applied having and the States stand, in plane on which all point of power system”our constitutional that, upon a and right, under the pertinent laws consideration of of the Contending what is an equitable determine . this Court will . . states such waters. the use of of apportionment In R 100. 101. In 97. (1931). 670 U.S. 660, 282 Mass., Conn. v. 98. 99. 102. 96. RIGINAL INSLEY relevant despite the existence of federal common law on nuisance). of federal common relevant despite the existence doctrine of prior appropriation because both States adhered to that doctrine as a means of doctrine of prior appropriation because both States establishing priorities over waters within their boundaries. at 183–84 (discussing “equable apportionment” and “prior appropriation”); “priority of 622 (discussing 325 U.S. at 617–18, appropriation” and recognizing it as a doctrine). States follow the when both apportionment” “guiding principle for an law rights may be considered as part of the equitable be considered law rights may analysis. apportionment of the States’ competing bodies of water law, and instead simply water law, and instead simply bodies of of the States’ competing designed to “establis[h] a manner weighed the relevant factors in justice” between the States. law is not entirely unbounded, but creation of federal common of ensuring that each State is takes into account the delicate task before the Court. treated with equal dignity has cautioned that state law is “not to be deemed to have to be deemed law is “not that state has cautioned weight” controlling in explained the federal as adopted state law the Court has affirmatively where both States notably common law rule for the case—most for apportioning water, state-law methodology the same employ water law principle of prior such as the Western appropriation. O dispute. interstate an rule to govern law laws over another’s. one state’s of choosing L 39639-aap_18-1 Sheet No. 25 Side A 11/15/2017 09:50:50 A 11/15/2017 25 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 25 Side B 11/15/2017 09:50:50 ROCESS P , 343 U.S. 932; U.S. 343 , , Tex., v. Okla. Georgia v. , 451 U.S. at 745 at 745 , 451 U.S. ITHIN THE ITHIN W Tex. v. N.M. RACTICE ANDRACTICE Md. v. La. see also, e.g. P ISPUTES D The Court’s criteria for The Court’s criteria for URISDICTION J PPELLATE 107 The practice of allowing such The practice of allowing such A 103 RIGINAL NTERSTATE , 451 U.S. at 745, n.21); U.S. at 745, n.21); , 451 I O , 558 U.S. at 266 (discussing rules developed in earlier U.S. at 266 (discussing , 558 S Such actions have involved a wide range Such actions have involved a wide OURNAL OF OURNAL ’ J ) 11/8/2017 6:08 PM 105 HE Md. v. La. OURT ELETE D C , 558 U.S. at 266 (citing N.Y. v. Conn., 4 U.S. (4 Dall.) 1 (1799), and (1799), and Dall.) 1 (4 4 U.S. at 266 (citing N.Y. v. Conn., U.S. 558 , OT A. Intervention by Non-State Parties A. Intervention by and “for more than two centuries the Court has centuries the Court has and “for more than two N O 104 , 1(D ROCEDURES FOR (citing Ariz. v. Cal., 460 U.S. 605, 608, n.1 (1983); (1983); n.1 608, 605, U.S. Cal., 460 (citing Ariz. v. at 265 (citing , 180 , 180 U.S. at 224–25)). 106 Id. See generally S.C. v. N.C. See generally S.C. v. S.C. v. N.C. v. S.C. Id. ESEND Consistent with this history, the Court also has permitted permitted also has Court Consistent with this history, the Although the Court certainly could have justified a rule that have justified a rule certainly could Although the Court The same historical and structural concerns that animate the that animate concerns and structural historical The same R V. P 106. 103. 104. (1792). 402 Dall.) 2 U.S. (2 105. 107. INSLEY Mo. v. Ill. v. Mo. cases). parties began in 1792 with the Court’s decision in parties began in 1792 with the Brailsford exercised that jurisdiction over nonstate parties in suits between parties in suits between exercised that jurisdiction over nonstate States.” two or more of for equitable apportionment of subjects, including claims water. in original jurisdiction actions non-State parties to intervene under appropriate circumstances. only sovereign States could be parties to original jurisdiction jurisdiction to original States could be parties only sovereign III, Section 2, for Article under the head of actions brought long has states,” the Court two or more “controversies between parties to or entities to be named as persons allowed non-State further provision in Section 2 such actions, in part based on the as well of another State,” for suits “between a State and Citizens over cases “in jurisdiction as the general provision for original which a state shall be a party.” 42 T 42 original of the Court’s substance jurisprudence also jurisdiction in such cases— follows that the Court procedures the influence governing its those differ significantly from procedures that appellate docket. L N.J. v. City of N.Y., 279 U.S. 823 (1929) (per curiam) (granting motion to add City)). (granting motion to add curiam) (per (1929) 823 U.S. 279 N.Y., v. City of N.J. dispute threatening armed hostilities (involving boundary 598 (1922) 581, 574, 258 U.S. with respect to private intervenors’ rights in contested land); n.21 (permitting private corporations to intervene in original-action Commerce Clause tax). imposition of allegedly unlawful challenge to State’s 39639-aap_18-1 Sheet No. 25 Side B 11/15/2017 09:50:50 B 11/15/2017 25 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 26 Side A 11/15/2017 09:50:50 114 109 43 Finding these parens patriae When a private When a private TATES 111 S 108 the Court allowed the 112 ETWEEN B , 558 U.S. at 266–67. , the Court allowed several , the Court first addressed the issue of the issue , the Court first addressed ONTROVERSIES accord S.C. v. N.C. —C ) 11/8/2017 6:08 PM note 91, at 43. ELETE D , 258 U.S. at 579. at U.S. , 258 OT supra N , 451 U.S. at 729. U.S. at 729. , 451 O Various parties then sought to intervene, claiming intervene, claiming Various parties then sought to URISDICTION 1(D J 110 Maryland v. Louisiana at 581. at 581. (discussing receiver’s appointment). 580 at 113 Oklahoma v. Texas Oklahoma Okla. v. Tex. Id. Id. Id. La. Md. v. ESEND In In R 108. Patashnik, 109. motion to Philadelphia’s (1953) (denying 373 369, U.S. N.Y., 345 v. N.J. 110. 111. 112. 113. 114. RIGINAL INSLEY intervene, on the ground that the city failed to meet its burden to show that Pennsylvania interests);its did not represent claims in conflict with one another and “with the claims of one another and “with the claims with one in conflict claims litigants,” of the three principal or more had a “direct stake companies The Court found that the pipeline doctrine to hold that, because a State is deemed to represent the to represent is deemed because a State to hold that, doctrine for such non-State its citizens, there is no need interests of own rights. to protect their intervene parties to home in a case in which the intervenor’s party seeks to intervene the demonstrate intervenor must the a party, State is already and that the State will not adequately inclusion necessity for its “some must show that is, the intervenor interests: its represent in a his interest apart from right, interest in his own compelling state, of the same citizens and creatures class with all other by the state.” represented properly not which interest is in interstate could intervene whether non-State party plaintiffs had intervened to assert United States the disputes. In that case, the river, and a contested against the party States over claims certain disputed of possession Court appointed a receiver to take property. controlled. rights in the land that the receiver . to be freely and appropriately all possible “would permit intervention, which it concluded . . to the property claims could govern the receiver’s asserted” such that no other court control. case that in an interstate intervene to companies pipeline natural gas tax. of Louisiana’s constitutionality addressed the O original on the heavily have rested intervention such permitting for original jurisdiction rationale and historical constitutional Generally, the or more States. two between over controversies for non- of intervention the scope narrowly restricted Court has the disputes, applying in interstate state parties L 39639-aap_18-1 Sheet No. 26 Side A 11/15/2017 09:50:50 A 11/15/2017 26 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 26 Side B 11/15/2017 09:50:50 ROCESS P Although Although , the Court despite the , 345 U.S. at 373. at 373. U.S. , 345 115 117 121 , where Native , where —in which South —in which RACTICE ANDRACTICE N.J. v. v. N.Y. N.J. P PPELLATE A New Jersey v. New York The Court explained that it would be Arizona v. California Arizona 120 In In OURNAL OF OURNAL J 119 ) 11/8/2017 6:08 PM HE ELETE D And in And in OT , 345 U.S. at 373. U.S. at 373. , 345 N 116 O , Tex. v. N.J., 379 U.S. 674, 677, 683 (1965); (1965); 677, 683 U.S. 674, 379 N.J., v. Tex. , 118 1(D e.g. South Carolina v. North Carolina , at 743–45 (discussing tax burden felt by people of states outside tax burden felt by people of states Louisiana and at 743–45 (discussing at 615. at 615. at 745 n.21. 745 at Id. Id. Id. See N.J. v. N.Y. Id. ESEND In In some other original jurisdiction cases, the Court has cases, the Court has other original jurisdiction In some R 115. 116. 117. (discussing tribes’ interest). (1983) 614–15 U.S. 605, 460 v. Cal., Ariz. 118. 119. 120. 121. INSLEY unworkable to permit each municipality that might have an have that might each municipality unworkable to permit aparty: “If we undertook to to become interest in the matter within Pennsylvania, we could, evaluate all the separate interests dispute over the intramural in effect, be drawn into an distribution of water within the Commonwealth.” Carolina sought an equitable apportionment of the waters of the Carolina sought an equitable apportionment denied leave for the City of Charlotte Catawba River—the Court the private parties’ injuries were identical to that of the State, the of the State, the to that identical injuries were parties’ the private precluded of interests alignment find that this not Court did intervention. permit it would as that the intervention—insofar State’s claim the compromise tribes against the States—would by the claims the Eleventh by immunity protected State’s sovereign Article III not waived as part of the original and Amendment the States resolving disputes between provision for themselves. lacked the requisite found that the putative intervenors independent interest. to intervene in a by the city of Philadelphia denied a motion a diversion by New dispute in which New Jersey challenged River, holding that the City York of the waters of the Delaware that Pennsylvania would not its burden to show had not met a “compelling that it had its interest and adequately represent interest” in its own right. 44 T 44 full of a the interest that, “in and concluded controversy” in th[e] Master’s Special the it would accept the issues,” of exposition to intervene. be allowed that they recommendation L that found intervene, the Court tribes sought leave to American independent to take their place as were “entitled the tribes body politic,” the of modern qualified members concluding that anthe case was “appropriate one for the exercise of our original 1251(b)(2)”). § jurisdiction under 39639-aap_18-1 Sheet No. 26 Side B 11/15/2017 09:50:50 B 11/15/2017 26 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 27 Side A 11/15/2017 09:50:50 45 127 For the case to TATES 128 S ETWEEN B By contrast, the Court allowed Court allowed the By contrast, The Court found that these parties The Court found 124 The Court also allowed intervention allowed intervention The Court also 126 125 ONTROVERSIES —C ) 11/8/2017 6:08 PM which shared Charlotte’s interest in ensuring interest in ensuring Charlotte’s which shared B. Requirement to Seek Leave B. Requirement ELETE D 123 , 558 U.S. at 267–74 (discussing potential at 267–74 (discussing U.S. intervenors’ individual , 558 OT N O . R. 17(3) (providing that “[t]he initial pleading [in an action initial (providing that invoking the . R. 17(3) “[t]he T URISDICTION 1(D J .C at 274 (“Charlotte is a municipality of North Carolina, and for purposes of this of this is a municipalityat 274 (“Charlotte and for purposes of North Carolina, at 268–73. at 268–73. . at 271, 273 (holding that “neither State [had] sufficient interest . . . to represent . to represent sufficient interest . . that “neither 273 (holding State [had] . at 271, UP S.C. v. N.C. Id. Id. Id Id. Id. ESEND As a municipality of North Carolina and a beneficiary of of a beneficiary Carolina and of North As a municipality The existence of a dispute between States does not of a dispute between States does not The existence R 122 122. 123. 126. 127. 128. S 124. 125. RIGINAL INSLEY situations). Court’s original jurisdiction] shall be preceded by a motion for leave to file, and may be the motion”). of brief in support a accompanied by commence, the motion must be approved by a majority of the must be approved by a majority commence, the motion to for leave motion the grant whether to deciding Justices. When had strong interests in the outcome of the dispute that were not of the dispute in the outcome had strong interests party States. of either of the two aligned with those of the Court’s original warrant the exercise automatically the seek leave from must State The complaining jurisdiction. meet must and in so doing Court to file a bill of complaint, Before initial pleading, filing an certain threshold requirements. by jurisdiction original the Court’s State invokes a complaining a motion for leave to file in the Court. making O to do parties two other but permitted as a defendant, to intervene so. by represented adequately was water use, Charlotte its alleged North Carolina, plants eleven power which had by Duke Energy, intervention on both sides of the dams, with accompanying along the river, involved in any and necessarily would be state boundary plan. resulting allocation both also had operations on that entity by a bi-state municipal boundary. sides of the state L water. received city that the the full scope of the [municipal entity’s] interests,” and that the “importance” and and interests,” that the “importance” the [municipal entity’s] and the full scope of by a be represented that they “should interests indicated Duke Energy’s “relevance” of properly”). so situated to do State [was] that “neither party,” but litigation, its transfers from of water the Catawba River basin constitute part of North of affected North a class occupies . Charlotte, therefore, . . Carolina’s equitable share. magnitude of Charlotte’s authorizedCarolina users of water, and the transfer does not class.” (citations omitted)). of the distinguish it in kind from other members 39639-aap_18-1 Sheet No. 27 Side A 11/15/2017 09:50:50 A 11/15/2017 27 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 27 Side B 11/15/2017 09:50:50 , ROCESS P Wyo. v. Okla. demonstrates, demonstrates, In that case, the In that case, the RACTICE ANDRACTICE 131 P PPELLATE The Court reasoned that the The Court reasoned A 132 Although the need to establish Although the need Maryland v. Louisiana 133 OURNAL OF OURNAL J As ) 11/8/2017 6:08 PM 130 HE ELETE , 506 U.S. at 76–77. D OT N , 451 U.S. at 737 (citations omitted)., 451 , Mont. v. Wyo., 563 U.S. 368, 375 (2011) (involving dispute over 375 (2011) U.S. 368, 563 v. Wyo., , Mont. O 134 129 e.g. 1(D , at 739. at (pointing out that “individual consumers cannot be expected to litigate . . . cannot (pointing out that “individual consumers Md. v. La. Md. v. Id. See Miss. v. La. Id. See ESEND Second, the Court imposes a heightened pleading standard Second, the Court imposes First, the complaining State must establish standing to establish standing State must complaining First, the R 130. as a State Kansas (indicating that injury to (2001) 8–9 1, U.S. Colo., 533 v. Kan. 131. 132. 129. 133. 134. INSLEY gave it standing to bring an action against Colorado for water disputes rooted in Colorado for water disputes thegave it standing to bring an action against Arkansas River Compact). that must be met before it “exercise[s] its extraordinary power before it “exercise[s] be met that must conduct of one [sovereign] the to control Constitution under the for example, the State “may act as the representative of its of its act as the representative the State “may for example, “affects the general injury the when actions” citizens in original State in substantial way.” population of a interest “inStates had a broad citizens from protecting [their] the citizens could not injury” because substantial economic bring suit in Louisiana. the Court interstate claims, types of preclude some standing may over boundaries, disputes has recognized standing for interstate itself demonstrates—water pollution, tax, and—as this article allocation. 46 T 46 which requirements, important several considers the Court file, of the delicate” nature “grave and follow from the largely it need to exercise corresponding and the jurisdiction sparingly. It does so or States. the defendant State action against bring the “not merely direct interest of its own” and by showing “a are the real for the benefit of individuals who seeking recovery parties in interest.” injury to the the plaintiff States could sue for Court held that of an alleged property interests as a result their citizens’ tax imposition. unconstitutional L appropriation of water under a compact); Ala. v. N.C., 560 U.S. 330, 338 (2010) (involving 330, appropriation of U.S. water under a compact); Ala. v. N.C., 560 dispute over a compact addressing storage of low-level radioactive waste); receipts of Oklahoma coal-severance-tax effects on Wyoming (involving U.S. at 452 502 statute requiring power plants located in Oklahoma to burn a specific percentage of coal boundary dispute 652 (1973) (involving 410 U.S. 641, mined in Oklahoma); Ohio v. Ky., Ohio River). over the given that the amounts paid by each consumer are likely to be relatively small”). are likely to be consumer each amounts paid by given that the 39639-aap_18-1 Sheet No. 27 Side B 11/15/2017 09:50:50 B 11/15/2017 27 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 28 Side A 11/15/2017 09:50:50 . L. . L. E , 45 M The Court 47 139 137 TATES , 401 U.S. at 495. U.S. , 401 S Discretionary Gatekeeping: The The Discretionary Gatekeeping: ETWEEN B Among other things, the other Among 136 This standard creates a much a much creates standard This Yet, even when the parties do not Yet, even when 135 , 401 U.S. at 495 (concluding that although case at 495 (concluding that although case , 401 U.S. 140 see also Wyandotte Chemicals see also Wyandotte ONTROVERSIES In addition, because of the Court’s the Court’s because of In addition, 141 138 —C ) 11/8/2017 6:08 PM , 406 U.S. at 93, 108 (declining to exercise original jurisdiction 108 (declining to at 93, U.S. , 406 , 406 U.S. at 105 (indicating that (indicatingthe “question of apportionment, 406 U.S. at 105 that ELETE D OT , 506 U.S. at 76 (recognizing that original, 506 jurisdiction is to be exercised N O URISDICTION 1(D J see also Wyandotte Chemicals See id. City of Milwaukee Miss. v. La. City of Milwaukee ESEND Third, even if the complaining State meets these minimum minimum these State meets if the complaining Third, even R . 185, 190 (1993) (noting that the Court rejected fifty State-party cases between (noting that the Court rejected (1993) 190 . 185, 135. (1923) (holding in an interstate 374 water dispute365, U.S. 263 N.D. v. Minn., 136. 137. bill did not that the amended (determining (1934) 292 286, U.S. 291 v. Ariz., Ala. 138. 141. 139. that state court action provided an (finding at 797 U.S. 425 N.M., Ariz. v. 140. RIGINAL EV INSLEY that Minnesota’s andconstruction of drainage ditches straightening of a river channel was quotation marks omitted). Dakota) (internal North affecting floods not responsible for meet the requirements to grant leave). because the claim at issue lacked “seriousness and dignity,” and “remit[ting] the parties to and “remit[ting] and dignity,” at issue lacked “seriousness because the claim adequate to resolve an appropriate district court whose powers are the issues” (footnote omitted)); falls within originaldecline to exercise” nevertheless “should jurisdiction, the Court to exercise 18–19 (1939) (declining U.S. 1, original jurisdiction); Mass. v. Mo., 308 taxes, finding that another proper and state original jurisdiction over a matter involving L. McKusick, was available); Vincent adequate remedy Court’s Management of Its Original JurisdictionSupreme Docket Since 1961 R higher burden for the complaining State than would apply in a would apply in State than for the complaining higher burden suit between individuals. private is clearly injury threatened “the unless grant leave not Court will and imminent.” be of serious magnitude shown to in which litigate, the Court still to forum have access to another discretion on a case-by-case basis to deny leave to use its may file an original action. O another.” suit of at the state the action. refuse to entertain Court still may the prerequisites, its original the Court has refused to exercise As noted above, original its exclusive, even in cases within jurisdiction and dignity of the where the requisite “seriousness jurisdiction, was lacking. claim” the issue can the Court considers whether resources, limited litigated in an alternative forum. appropriately be L it court, provided that district choose to send the case to a may question. involves a federal of interstate waters is a question law’ upon which state statutesof ‘federal common or conclusive”). decisions are not discretion); with only sparingly and October 1, 1961, and April 25, 1993, and provided only nine published opinions explaining nine published opinions explaining provided only and and April 25, 1993, 1961, October 1, of them). most to hear its reasons for refusing which to resolve the controversy). “appropriate forum” in 39639-aap_18-1 Sheet No. 28 Side A 11/15/2017 09:50:50 A 11/15/2017 28 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 28 Side B 11/15/2017 09:50:50 ROCESS P , 459 U.S. at 187 at 187 U.S. , 459 such that the the such that illustrates this illustrates 144 RACTICE ANDRACTICE P 146 But even a showing of And the defendant State 142 see also Colo. v. N.M. Colo. v. see also , 282 U.S. at 669; N.Y. v. N.J., 256 U.S. N.J., 256 N.Y. v. at 669; 282 U.S. , 145 PPELLATE A Kansas v. Colorado Conn. v. Mass. Conn. OURNAL OF OURNAL J ) 11/8/2017 6:08 PM HE ELETE D , 459 U.S. at 187. at 187. U.S. , 459 , 459 U.S. at 187. at 187. U.S. , 459 OT N , 200 U.S. 496, 521 (1906) (using this 521 (1906) characterization U.S. 496, in a case, 200 in which O 1(D The complaining State must demonstrate, with “clear demonstrate, State must The complaining at 189–90 (remanding for further findings). findings). for further (remanding 189–90 at Colo. v. N.M. Id. Mo. v. Ill. Colo. v. N.M. ESEND 143 The Court’s decision in Even if a State succeeds in invoking the Court’s original original the Court’s in invoking a State succeeds Even if R C. High Barrier to a Decree Affecting Sovereign Interests Interests Sovereign Affecting Decree to a Barrier C. High 143. 144. 142. (1993); 591 584, U.S. 507 Wyo., v. Neb. 145. 146. INSLEY 296, 309 (1921). (1921). 296, 309 n.13 (discussing burden of proof); n.13 (discussing Court would be prepared to defend its decree “against all Court would be prepared to considerations on the other side.” or proposed uses of water uses that the benefits of its prove may alleged by the complaining “substantially outweigh the harm[s]” will issue. State, in which case no decree and convincing evidence,” a substantial injury caused by the and convincing evidence,” a substantial such as “unreasonably wasteful” use, other State, such injury may not be enough to warrant a decree from the not be to warrant a decree from enough such injury may will exercise its extraordinary Court. Rather, before the Court shown that the also be it must powers to enjoin a State’s actions, the defendant State do not “countervailing equities” that benefit complaining the to existing users” in “justify the detriment State. to the Court is reluctant point and also the degree to which of sovereign the balance a way that will disrupt in intervene 48 T 48 of the a preponderance its case by and establishing jurisdiction a assured necessarily State is not complaining the evidence, delicate upon the same a decree. Based of the form victory in to the Court to decline cause may that interests sovereign States, the between action jurisdiction original an entertain an action, even in such decline to enter a decree Court may This is has proven its case. seemingly where one State cases involving in equitable apportionment particularly true would normally where the requested decree interstate waters, State from defendant the of an order enjoining form take the The waters. with respect to the disputed certain uses or actions must State the complaining at a minimum, stated that, Court has real of some by clear and convincing evidence establish “proof and substantial injury or damage.” L the bill was dismissed after trial because Missouri failed to meet the standard of proof). proof). of to meet the standard dismissed after trial because Missouri failed the bill was 39639-aap_18-1 Sheet No. 28 Side B 11/15/2017 09:50:50 B 11/15/2017 28 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 29 Side A 11/15/2017 09:50:50 After 151 The Court 49 Colorado v. After a trial, trial, After a Nonetheless, Nonetheless, 149 147 148 TATES S ETWEEN B , the Court again displayed . supra 150 ONTROVERSIES —C ) 11/8/2017 6:08 PM ELETE , 282 U.S. at 663–67 (setting out facts U.S. at 663–67 282 alleged by Connecticut, and D , omitted). (footnote at 393–94 U.S. 320 , 206 U.S. at 113–14. at 113–14. U.S. , 206 OT N O URISDICTION 1(D J text accompanying notes 85–89, 85–89, notes text accompanying Connecticut v. Massachusetts . at 114. 114. . at : Kan. v. Colo. Kan. v. Id Colo. v. Kan. Conn. v. Mass. See ESEND [I]n of the great disputes as this, the court is conscious such with which it is necessaryand serious caution to approach Not everywhether a case is proved. the inquiry matter which would warrant resort to equity by one citizen against another would justifyinterference with the action our a of the complaining much state is state, for the burden on byprivate be borne to greater than that generally required the case intervene parties. Beforemust be of the court will in and clearly proved. And serious and fully magnitude to state is using, or threatening one whether determining its equitable share of the benefits of than use, a more equitiesstream, all the factors which create of one in favor be state or the other must weighed as of the date when the mooted. is controversy In R 148. 149. 150. 151. 147. RIGINAL INSLEY findings of special master). findings of special a reluctance to disrupt the status quo between two sovereign a reluctance to disrupt the status had challenged Connecticut States by issuing a coercive decree. waters of the Connecticut a plan by Massachusetts to divert diversion plan inevitably would harm that the River, claiming capabilities. Connecticut’s agriculture and hydropower the Court found that comparing the amount of detriment to detriment of amount the that comparing the Court found led to the “great benefit” to Colorado Kansas with the the two “equality of right and equity between conclusion that of withdrawal the present any interference with states forbids for the purposes of irrigation.” water in Colorado in point in its later decision same much the made Kansas a full trial on the merits—and taking jurisdiction and holding the assertions of many findings that agreed with also making O States. between interests above, discussed As case resulted this doctrine of equitable of the Court’s expression in the first waters. to interstate with respect apportionment of of the flow “diminution the that with Kansas agreed the Court worked some of Colorado has by the irrigation river the water in part of Kansas.” southwestern to the detriment L 39639-aap_18-1 Sheet No. 29 Side A 11/15/2017 09:50:50 A 11/15/2017 29 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 29 Side B 11/15/2017 09:50:50 . ROCESS P 157 ASTERS M Missouri v. Illinois Missouri RACTICE ANDRACTICE P 152 —the Court ultimately —the Court ultimately PECIAL S 153 . PPELLATE A supra capacity but the Court found that the river but the Court found Colo. v. N.M., 467 U.S. 310, 319, 320 (1984) 320 (1984) 319, U.S. 310, 467 v. N.M., Colo. 154 ELIANCE ON . R S OURNAL OF OURNAL ’ J see also ) 11/8/2017 6:08 PM Because the factual findings introduced by by Because the factual findings introduced HE 156 The Court also considered whether the alleged whether the alleged The Court also considered ELETE OURT D C 155 OT parens patriae N , 200 U.S. at , 200 517 HE O 1(D text accompanying notes 65–67, 65–67, notes text accompanying at 666–67, 669; 669; at 666–67, at 522. at 522. at 523–25. at 526. V. T Mo. v. Ill. v. Mo. Id. Id. Id. See Id. ESEND Because the Court has limited resources that are not well Because the Court has limited Similar factors affected the outcome in affected the outcome factors Similar R 154. 155. 156. 157. 153. 152. INSLEY (determining burden that Colorado failed by providing of demonstrating injury its to meet assertions”). “mere only “generalizations” and the two States made “the case weaker in principle as well as as well as “the case weaker in principle the two States made the bill. dismissed harder to prove,” the Court ultimately typically day-to-day activities of a trial court, it suited to the of an original jurisdiction case, initial management delegates the of the factual record and initial as well as the development original jurisdiction cases, the findings of fact and law. In early to assist with these appointed a commissioner Court sometimes experienced “no visible increase of filth” and “no new smell,” of filth” and “no new smell,” “no visible increase experienced have found unlikelihood that the Court would further noting the kind” known to the “older of the simple this “a nuisance common law.” effect on year-over-year to have any appeared contamination typhoid-fever cases in St. Louis statistics tracking the number of to travel bacteria of the the ability research into and independent through the river. 50 T 50 the bill dismissed ultimately Court had made—the Connecticut “clear and had not offered because Connecticut of complaint the so as to provide serious injury evidence of convincing” the to control power its extraordinary warrant to “exert Court a suit of another.” of one State at the conduct the high bar for the had failed to meet found that Missouri of the jurisdiction. Missouri had complained Court’s original “poisonous filth that sent of Chicago sewage alleged discharge Mississippi,” the daily into L file the action—thereby to granted leave Although the Court an original bring may that a State the principle establishing action in a 39639-aap_18-1 Sheet No. 29 Side B 11/15/2017 09:50:50 B 11/15/2017 29 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 30 Side A 11/15/2017 09:50:50 162 163 In the In the 159 51 167 , the litigation In the seminal In the seminal TATES and to entertain and to entertain S 166 Ariz. v. Cal., 531 U.S. 1 1 U.S. 531 Cal., Ariz. v. 164 160 see also ETWEEN . B In some cases, a Special In some 165 Arizona v. California ONTROVERSIES —C ) 11/8/2017 6:08 PM note 29, at 643. at 643. note 29, ELETE D supra Since then, the scope of the authority wielded by scope of the authority wielded by Since then, the OT N , Vanstophorst v. Maryland, 2 U.S. 401, 401 (1791) (appointing401, 401 (1791) v. Maryland, 2 U.S. , Vanstophorst (indicating that the commissioners were to “examine witnesses in to “examine (indicating that the commissioners were 161 , Ariz. v. Cal., 466 U.S. 144, 144 (1984) (approving Special Master’s (1984) 144, 144 Cal., 466 U.S. , Ariz. v. O , N.J. v. Del., 552 U.S. 597, 608 (2008) (observing that the Special Master (observing 608 (2008) U.S. 597, Del., 552 v. N.J. , , (1930). 796 U.S. 796, N.H., 282 Vt. v. , authority 996 (1965) (describing given to the 996, 379 U.S. Iowa, Neb. v. , (remanding to Master for further 221 (1991) 221, 501 U.S. N.M., v. Okla. e.g. URISDICTION e.g. 1(D J including by taking testimony from witnesses. testimony taking by including Va. v. W. Va., 209 U.S. 514, 534–37 (1908) (ordering that case be 534–37 referred toU.S. 514, 209 Va., W. Va. v. , , Carstens, 158 See, e.g. See See id. See See See, e.g. See e.g. See e.g. See ESEND Over the years, the Court expanded its use of third parties of third parties expanded its use Court years, the Over the R 167. that, (1963) (noting in the course of 546, 551 the two-year U.S. Ariz. v. Cal., 373 166. 165. 159. 158. 161. 162. 163. 164. 160. RIGINAL INSLEY “carefully considered nearly 6,500 pages of materials presented by the parties”). parties”). the materials presented by pages of 6,500 “carefully considered nearly trial, “340 witnesses were heard orally or by deposition, thousands of exhibits were were filled”); 25,000 pages of transcript received, and recommendation that additional parties be permitted to intervene). that additional parties be permitted to intervene). recommendation commissioners in the first original jurisdiction case filed in the Supreme Court). Court). commissioners inSupreme first original jurisdiction case filed in the the lasted for decades and the trial lasted for two years. trial lasted lasted for decades and the motions and preside over trials. preside over motions and original jurisdiction case of Special Masters has expanded to include hearing evidence, include hearing evidence, has expanded to Special Masters to the Court. record, and issuing a report developing the case a case for review by the Court, prepare take years to Master may record, including expert a substantial and lengthy amassing or scientific matters. on technical testimony nineteenth and early twentieth centuries, the Court appointed Court appointed centuries, the and early twentieth nineteenth judicial decrees, task of enforcing the to assume commissioners state boundaries. those involving specifically and interprets compacts a Special Master often In so doing, and makes and precedents, documents other relevant appropriate disposition or relief. as to any recommendations and the time to “fix also is authorized The Special Master and to direct proceedings filing of pleadings, for the conditions” subpoenas, to issue summon witnesses, and O duties, created 1908, the Court cases. In original in managing to assist the Court could Special Master, through which the office of the to assist Masters for specific cases Special designate individual findings and legal factual initial by making its decisionmaking conclusions. L a Special Master to report factual findings to the Court). Court). to the factual findings report a Special Master to merits). on the by recommendations followed be proceedings to expenses) him to recover allowing Special Master and Holland”). 39639-aap_18-1 Sheet No. 30 Side A 11/15/2017 09:50:50 A 11/15/2017 30 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 30 Side B 11/15/2017 09:50:50 de 171 New New ROCESS and , 35 S.F. S.F. , 35 at 22–23 P see also id. see , for example, the Court , for example, RACTICE ANDRACTICE P Supreme Court Watch: Very Supreme Virginia v. Maryland , 552 U.S. at 617. 617. at U.S. 552 , 172 , 552 U.S. at 617 (referring to Special (referring to Special U.S. at 617 , 552 PPELLATE The Court may sustain or The Court may A 170 N.J. v. Del. N.J. v. New Jersey v. Delaware New . 15, 22 (2012) (noting that, in light of word limits on (2012) . 15, 22 See N.J. v.Del. EV and OURNAL OF OURNAL J , 282 U.S. at 796 (indicating that any “findings, conclusions, conclusions, that any “findings, 796 (indicating at U.S. , 282 ) 11/8/2017 6:08 PM . L. R . L. HE , 501 U.S. at 221. U.S. at 221. , 501 YO ELETE Any party to the action may challenge the may to the action Any party D OT 168 N Vt. v. N.H. O , , U.S. v. La., 485 U.S. 88, 89 (1988) (overruling exceptions by the State of the State exceptions by (overruling 89 (1988) U.S. 88, La., 485 v. U.S. , a process that requires the parties to select their select parties to the that requires a process 1(D 169 Virginia v. Maryland See Okla. v. N.M. See, e.g. See, e.g. ESEND Some commentators have criticized aspects of the Court’s the Court’s aspects of have criticized commentators Some After collecting the evidence and examining the applicable the applicable examining and evidence the collecting After R review. 45, 47–48 (2009). (2009). 45, 47–48 Y ’ 171. 172. In 170. has observed that the standard appointment order for a of commentators group One 168. 169. TT INSLEY Master Ralph I. Lancaster, Jr.); Va. v. Md., 540 U.S. 56, 64 (2003) (same). The Special The Special (same). 64 (2003) U.S. 56, 540 Master Ralph I. Lancaster, Jr.); Va. v. Md., Master analyzed and reconciled the differences in the two cases in his recommendations, noting that “both original actions Mr. which the Court found persuasive, to” were referred Master. as Special his capacity Lancaster in Jersey v. Delaware, 12 W 12 Delaware, Jersey v. appointed the same Special Master. appointed the same (discussing consequences of issue choice and assessing outcome in an illustrative outcome in case). choice and assessing issue (discussing consequences of in broad discretion Special Master powers,” including authorizes “fairly extensive the et al., Jeffrey L. Bleich proceedings.” “conduct[ing] A Special Masters—Handling the Supreme Court’s Original Jurisdiction Cases Court’s Supreme Special Masters—Handling the (2000) (entering final supplemental decree filed after motion to re-open was granted in after motion to re-open was (2000) (entering final supplemental decree filed (1989)). U.S. 866 493 v. Cal., Ariz. and recommendations of be subject to consideration, revision, special masterthe or shall Court”). the approval by novo arguments. strongest available the Special and either reject or adopt overrule the exceptions remand may or in part. The Court also in whole Master’s report evidence. the Special Master to take additional to the case no obligation to defer to any aspect has Court And although the have been cases report, certainly there of the Special Master’s to do so. has appeared where the Court in the lack of transparency including the use of Special Masters, the impropriety Special Masters are appointed, process by which are not subject to the who of deference to decisionmakers and the absence of rules process, appointment Constitutional in which Special Masters conduct governing the manner of the litigation);Mississippi the scope Stuart A. Raphael, that would have expanded Litigation:Practical Considerations in Original Action 52 T 52 of a report and submits prepares Master Special law, the recommendations conclusions, and findings, for to the Court L the part of or to all by filing exceptions Master’s report Special findings, exceptions, “a state that loses an the Special Master may be forced to argument before exceptions”); issues to raise on best choosing the when abandon it 39639-aap_18-1 Sheet No. 30 Side B 11/15/2017 09:50:50 B 11/15/2017 30 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 31 Side A 11/15/2017 09:50:50 53 TATES S ETWEEN B note 29, involvement of at 668–69 (characterizing ONTROVERSIES VI. CONCLUSION supra —C ) 11/8/2017 6:08 PM ELETE D But in the end it is the Court that ultimately ultimately that is the Court end it in the But OT N 173 , Carstens, O URISDICTION 1(D J See, e.g. ESEND Although original jurisdiction Although original the cases rarely generate R 173. RIGINAL INSLEY Special Masters in original jurisdiction cases as “disquieting,” decrying their acting in “the absence of either delineated rules or concern that of precedent,” a vast body and expressing the use of Special Masters can lead to “outcomes that result from processes not in of fair adjudication”). conformity with the public’s notion kind of national press that attends other categories of cases, the categories other press that attends kind of national a States remains controversies between in resolving Court’s role Having given up government. constitutional vital feature of our part of a federalist sovereignty to become aspects of their of resolving their disputes a means the States need government, the residual sovereignty of way that respects in an evenhanded cases under in original Court’s jurisprudence each State. The purpose. that fundamental Article III has consistently reflected determines the facts and law in any original jurisdiction case, any original jurisdiction facts and law in the determines procedures for develop its own is free to certainly Court and the those it to make that will allow the record developing determinations. O proceedings. L 39639-aap_18-1 Sheet No. 31 Side A 11/15/2017 09:50:50 A 11/15/2017 31 Side Sheet No. 39639-aap_18-1