The Future of State Versus State Cases at the US Supreme Court – Route Fifty

wp header logo 48
Spread the love

The U.S. Supreme Court building, in Washington, D.C. iStock.com/YinYang
Your daily read on state and local government
Connecting state and local government leaders
By Bill Lucia
There’s a unique aspect to legal disputes between states, in that if one state wants to bring a court complaint against another, it’s possible for them to proceed directly to the U.S. Supreme Court. That’s opposed to most other lawsuits that work their way to the high court from lower courts on appeal.
The legal framework that allows states to do this is known as “original jurisdiction” and is outlined in Article III of the U.S. Constitution. Under federal law, the Supreme Court’s jurisdiction over state versus state legal conflicts is also considered to be “exclusive,” meaning states can’t go to another court to resolve their differences.
These days, it’s relatively rare that the Supreme Court takes up original jurisdiction cases. When it does, it typically appoints a “special master” to review the issues involved. The cases that do get picked up don’t always grab huge amounts of attention compared to many of the other constitutional clashes that come before the court.
“The original jurisdiction docket is certainly one that flies under the radar,” Mithun Mansinghani, Oklahoma’s solicitor general, noted during an online event this week co-hosted by the State Energy & Environmental Impact Center and State & Local Legal Center.
“The statute says the court ‘shall’ have jurisdiction, but over the years the Supreme Court has interpreted their exercise of that jurisdiction as discretionary,” he added.
But state litigators have recently taken notice that Justices Clarence Thomas and Samuel Alito have backed the idea that the court, perhaps, shouldn’t be turning down so many state versus state disputes.
“It’s an interesting issue. We’re certainly seeing Justices Thomas and Alito becoming more forceful about it,” said Lindsay See, West Virginia’s solicitor general. “Right now we don’t seem to have other justices who are signing onboard.”
If states want a case to be heard, they submit a “motion for leave to file a bill of complaint” with the court and then the justices decide whether or not to accept original jurisdiction.
In recent years, original jurisdiction cases have often been disagreements over water rights. For instance, Florida fought unsuccessfully to prove that Georgia’s overuse of water flowing into the Apalachicola River was destroying oyster fisheries and causing other environmental problems in the Sunshine State. That case, which dates back to 2013, was dismissed in April.
A disagreement between Texas and New Mexico over water on the Pecos River centered largely on which state should shoulder the loss of evaporated water stored after heavy rains. New Mexico prevailed in that court fight, decided in December.
Two Justices Show Interest
Earlier this year, Thomas and Alito joined in a 10-page dissent when the Supreme Court rejected a case where Texas sought to challenge a California statute prohibiting state-funded travel to other states with laws on their books deemed to be discriminatory.
In this case, the California sanctions were triggered by a Texas law that allowed foster care and adoption agencies, acting on religious grounds, to forego working with people based on their sexual orientation or gender identity when placing children with families.
The dissent, authored by Alito, doesn’t delve into the claims in the case, but instead critiques the court’s shift, over multiple decades, towards taking on fewer state original jurisdiction cases.
“The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive,” Alito writes. “The Court adopted this practice without ever providing a convincing justification.”
He describes a principal reason for the court passing on so many of the cases—the idea that these disputes would “crowd out consideration of more important matters” arising from appeals courts—as resting on a “dubious factual premise.”
“It is precisely because these disputes have a ‘delicate and grave’ character that they were placed exclusively in our hands,” Alito adds.
See explained that at the heart of the matter is what “shall” means in this context. That the court must take every state original jurisdiction dispute? Or that it can pick and choose?
“If the Supreme Court doesn’t take them up, there’s not another forum,” said See.
Since late last year, the court has declined to take up other state versus state cases.
There was a Texas challenge against 2020 presidential election voting results in four states. A New Hampshire clash with Massachusetts over a Bay State policy taxing the income of certain remote workers, who’d worked in-state before the Covid-19 pandemic. And Montana’s and Wyoming’s attempt to get the court to wade into a long-running battle over a coal export facility Washington state refused to permit.
In all of those instances, the court passed.
Looking Ahead
In the Supreme Court’s next term, there’s another water dispute teed up for an oral argument on Oct. 4. This one between Mississippi and Tennessee over groundwater.
Mansinghani noted another case granted original jurisdiction, which focuses on whether Delaware gets to claim, or “escheat,” unclaimed property from cash transfer company MoneyGram, which is incorporated there, or if other states can claim some of it as well. A special master in that case issued findings on it this year.
See said that the Supreme Court’s now prevailing approach to original jurisdiction disputes mean that a state needs to think creatively when it comes to getting their cases into court. “It certainly has to be incredibly persuasive,” she said.
There’s also a practical consideration that if states present too many of the cases, it could reinforce the notion that it would become unwieldy if the court takes them up more regularly. “It really puts a spotlight on what sort of cases states are bringing,” See added.
Bill Lucia is a senior editor for Route Fifty and is based in Olympia, Washington.
NEXT STORY: He Left a War-Torn Country as a Refugee and Went on to Become a US Mayor
Sign up for our daily newsletter:
Do Not Sell My Personal Information
When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.
Manage Consent Preferences
Strictly Necessary Cookies – Always Active
We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.
Sale of Personal Data, Targeting & Social Media Cookies
Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link
If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.
Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.
Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.
If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings

Cookie List
A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:
Strictly Necessary Cookies
We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.
Functional Cookies
We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.
Performance Cookies
We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.
Sale of Personal Data
We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.
Social Media Cookies
We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.
Targeting Cookies
We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.
Help us tailor content specifically for you:

source

Read Previous

Is Cryptocurrency Legal In Nigeria? – Actions Towards The Regulations Of Cryptocurrency In Nigeria – Technology – Nigeria – Mondaq News Alerts

Read Next

University of North Carolina and civil rights advocates ask Supreme Court to sidestep affirmative action challenge – CNN

Leave a Reply

Your email address will not be published.