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We have two reasons to welcome Heather Elliott’s paper on the Supreme Court’s original jurisdiction in state-party cases. First, she diagnoses and proposes a cure for what she describes as discrimination in the administration of the Court’s original docket. Second, she presents this paper as the opening salvo in an extended engagement with the Court’s original jurisdiction. Students of federal procedure and jurisdiction should attend to both developments.

As for the problem, the Supreme Court exercises discretion in deciding whether to allow one state to sue another state in the Court’s original jurisdiction. For example, the Court refused to allow pro-Trump Texas to docket an original suit to challenge the 2020 election results in pro-Biden states that certified electors in accordance with their states’ popular vote. Many welcomed the rejection of the Texas case, but Elliott invites us to consider the basis for rejection. Instead of allowing Texas to docket the case and then rejecting it for want of standing, the Court declined to allow docketing. Two Justices wrote separately to question whether the Court can properly exercise discretion in deciding when to allow the states to invoke its original jurisdiction, a jurisdiction conferred in Article III and often characterized as mandatory and self-executing.

Elliott reconstructs the history of original jurisdiction as a grant of power designed to match the dignity of the tribunal with the dignity of the parties. But the Court no longer administers its original docket in a way that befits those state equality and dignitary interests. Instead, because Congress made the Court’s original jurisdiction over inter-state disputes exclusive, the Court’s discretionary refusal to hear these cases leaves states with no alternative forum in which to adjudicate their claims and vindicate their legal rights.

Elliott’s solution is a new statute, in which Congress assigns concurrent original jurisdiction over inter-state disputes to some appropriate lower federal court. That tribunal would take the heat off the Court’s original docket, while allowing the Supreme Court to resolve such matters on appeal. Identifying the proper lower court presents some design questions. Elliott supports the creation of a specialty court, recognizing that the existing federal district courts have geographic ties to specific states and may for that reason lack the necessary appearance of neutrality. A specialized lower court with authority to convene sessions throughout the country might offer an effective alternative forum for inter-state disputes.

While I agree that discretion may pose a problem and that Congress has full authority to give lower federal courts first-instance authority over such matters, we might ask what the Court should do while waiting for the Godots in Congress. Among its innovations in administering its original docket, the Court relies on Senior Article III judges to serve as special masters. With the Court’s power to select and assign original matters to a special master of its choosing, the Court can ensure first-rate case management and high-quality legal analysis. What’s more, the master’s recommendations trigger an appellate-style process for the review of facts and law. Although the Court’s jurisdiction is nominally original, its decision-making process resembles the exercise of appellate jurisdiction. One question from a design perspective might be whether such a model offers a practical substitute for the more formal model of concurrent jurisdiction Elliott supports.

But such a workaround does not address Elliott’s real concern that the Court allows docketing of inter-state matters in only 44% of the inter-state petitions filed. In evaluating this concern, it may be worth looking closely at the matters the Court turns away. Some inter-state cases present questions that only the Court can resolve, such as disagreements about borders or allocation of interstate waters. But with the rise of aggressive state Solicitor Generals, many inter-state cases may be structured to present issues of federal law that might be resolved through other forms of litigation.

Unlike a border case, which necessarily implicates the state’s interest as a state, states can structure some inter-state litigation to proceed in a lower court. Just as citizens might challenge election results through ordinary litigation in federal district court, Texas might pursue Ex parte Young actions against state election officials in the relevant states as nominal official parties. The Supreme Court’s refusal to docket the Texas litigation may have reflected an awareness that Texas could pursue functionally equivalent relief through an action in lower federal courts. With a concurrent docket available, such declinations do not so obviously deprive the states of an essential remedy.

Elliott’s analysis of the turn-aways points both ways. She reports that the Court continues to accept most border and inter-state water cases, a somewhat hopeful conclusion. Yet she sees denials in disputes that present no functionally acceptable alternative forum. Those denials give rise to the concerns she articulates with the possibly discriminatory character of the Court’s handling of its docket. Until Congress steps up, we might all agree that the Court should pay special attention to inter-state disputes that cannot claim an alternative forum through an alternative litigation structure and vehicle.

We have much to anticipate as Elliott’s engagement with the subject continues. She might put her perspective on the original docket into conversation with criticisms of the shadow docket; a Court that shies away from the fact-finding inherent in original jurisdiction should perhaps be leery of granting emergency stay orders that effectively resolve disputes on inadequate factual records. Elliott might help us better understand the scope of the original jurisdiction, shedding light on whether it applies only to party-alignment matters or reaches federal question claims against the states.

Finally, I would welcome greater insight into the enduring question of what role original jurisdiction, as constitutionally conferred, should play once Congress creates lower federal courts. Some believe the Court’s original docket sought to ensure federal adjudication of a small slice of matters in an imagined world where Congress invoked its Madisonian Compromise authority to create a federal judiciary relying primarily on state courts of first instance. Once Congress has created lower federal courts, extensive reliance on the Court’s original docket may be tougher to defend.

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Cite as: James E. Pfander, Inter-State Litigation on the Supreme Court’s Original Docket, JOTWELL (March 31, 2023) (reviewing Heather Elliott, Original Discrimination: How the Supreme Court Disadvantages Plaintiff States, 108 Iowa L. Rev. 175 (2022)), https://courtslaw.jotwell.com/inter-state-litigation-on-the-supreme-courts-original-docket/.