MOTION FOR LEAVE TO FILE A BILL OF COMPLIANT
Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.
for leave to file a bill of complaint denied.
THOMAS, with whom JUSTICE ALITO joins, dissenting from the
denial of motion for leave to file complaint.
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.
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).
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).
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.).
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.
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.
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 ...