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Nebraska v. Colorado

United States Supreme Court

March 21, 2016

Nebraska and Oklahoma, Plaintiffs
v.
Colorado

          ON MOTION FOR LEAVE TO FILE A BILL OF COMPLIANT

         Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.

          OPINION

          Motion for leave to file a bill of complaint denied.

          DISSENT

         JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting from the denial of motion for leave to file complaint.

         Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and does so again today in denying, without explanation, Nebraska and Oklahoma's motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to exercising our original jurisdiction is questionable, and because the plaintiff States have made a reasonable case that this dispute falls within our original and exclusive jurisdiction, I would grant the plaintiff States leave to file their complaint.

         I

         The Constitution provides that " [i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction." Art. III, § 2, cl. 2. In accordance with Article III, Congress has [194 L.Ed.2d 546] long provided by statute that this Court " shall have original and exclusive jurisdiction of all controversies between two or more States." 28 U.S.C. § 1251(a).

         Federal law is unambiguous: If there is a controversy between two States, this Court -- and only this Court -- has jurisdiction over it. Nothing in § 1251(a) suggests [136 S.Ct. 1035] that the Court can opt to decline jurisdiction over such a controversy. Context confirms that § 1251(a) confers no such discretion. When Congress has chosen to give this Court discretion over its merits docket, it has done so clearly. Compare § 1251(a) (the Court " shall have" jurisdiction over controversies between States) with § 1254(1) (cases in the courts of appeals " may be reviewed" by this Court by writ of certiorari) and § 1257(a) (final judgments of state courts " may be reviewed" by this Court by writ of certiorari).

         The Court's lack of discretion is confirmed by the fact that, unlike other matters within our original jurisdiction, our jurisdiction over controversies between States is exclusive. Compare § 1251(a) with § 1251(b) (the Court " shall have original but not exclusive jurisdiction" of other cases over which Article III gives this Court original jurisdiction). If this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief. When presented with such a controversy, " [w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821) (Marshall, C. J.).

         Nonetheless, the Court has exercised discretion and declined to hear cases that fall within the terms of its original jurisdiction. See, e.g., United States v. Nevada, 412 U.S. 534, 537-540, 93 S.Ct. 2763, 37 L.Ed.2d 132 (1973) ( per curiam ) (controversy between United States and individual States); Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 500-505, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971) (action by a State against citizens of other States). The Court has even exercised this discretion to decline cases where, as here, the dispute is between two States and thus falls within our exclusive jurisdiction. See, e.g., Arizona v. New Mexico, 425 U.S. 794, 796-798, 96 S.Ct. 1845, 48 L.Ed.2d 376 (1976) ( per curiam ). The Court has concluded that its original jurisdiction is " obligatory only in appropriate cases" and has favored a " sparing use" of that jurisdiction. Illinois v. Milwaukee, 406 U.S. 91, 93-94, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). The Court's reasons for transforming its mandatory, original jurisdiction into discretionary jurisdiction have been rooted in policy considerations. The Court has, for example, cited its purported lack of " special competence in dealing with" many interstate disputes and emphasized its modern role " as an appellate tribunal." Wyandotte Chemicals Corp., 401 U.S., at 498, 91 S.Ct. 1005, 28 L.Ed.2d 256; see id., at 497-499, 91 S.Ct. 1005, 28 L.Ed.2d 256.

         I have previously applied the Court's precedents taking this discretionary approach to our original jurisdiction. See Wyoming v. Oklahoma, 502 U.S. 437, 474-475, n. (1992, 112 S.Ct. 789, 117 L.Ed.2d 1) (dissenting opinion) (acknowledging precedents, noting that they " have not been challenged here," and arguing against exercising jurisdiction). I have also acknowledged that " sound reasons" support that approach. Id., at 475, 112 S.Ct. 789, 117 L.Ed.2d 1.

         Because our discretionary approach appears to be at odds with the statutory text, it bears reconsideration. Moreover, the " reasons" we have given to support the discretionary approach are policy judgments that are in conflict with the policy choices that Congress made in ...


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