Professor Robert Pushaw Files Amicus Brief in Supreme Court Case Alabama v. California

Professor Robert J. Pushaw has filed an amicus brief in the Supreme Court case Alabama v. California along with fellow federal courts scholars Arthur D. Hellman, F. Andrew Hessick, and Derek T. Muller.  The case concerns a motion by Alabama and other states to file a complaint against California and other states under the Supreme Court's original jurisdiction. The brief argues that the Supreme Court has a duty to exerise its exclusive jurisdiction over state-against-state disputes.

Abstract

This amicus brief was submitted to the United States Supreme Court in support of the motion by Alabama and other states to file a bill of complaint against California and other states under the Court’s original jurisdiction. The brief addresses one issue alone: it argues that under Article III of the Constitution and section 1251 of the Judicial Code, the Court has a duty to exercise its exclusive, original jurisdiction over actions in which one state brings suit against another state. The brief takes no position on any other procedural or merits issues that may be raised by the motion or the action.

Under Article III of the Constitution, the Supreme Court’s original jurisdiction encompasses only two categories of cases: cases to which a state is a party and cases affecting ambassadors and other public ministers. Under section 1251 of the Judicial Code – following the pattern established by the Judiciary Act of 1789 – the Court has original and exclusive jurisdiction over a single class of cases: actions brought by one state against another state. Text, context, and history make clear that the Court has a duty to exercise that jurisdiction; there is no discretion to turn these cases away (except on case-specific grounds, such as nonjusticiability).

For the first century and a half under the Constitution, the Court never refused to permit the filing of a complaint in a case falling within its original jurisdiction. But in more recent decades, the Court has repeatedly done so, even in cases where the jurisdiction is exclusive. The brief argues, in accordance with several recent dissenting statements, that where the jurisdiction is exclusive – i.e., where one state brings suit against another state – the Court must at least allow the filing of the complaint.

This does not mean that the Court must decide the merits of the state’s claim (for example, if the state lacks standing) or give the case plenary consideration. But in contrast to the certiorari jurisdiction, the Court does not have discretion to deny a motion by one state to file a complaint against another state.

The brief recognizes that the Court may have concerns about the practical implications of opening up access to its original docket. But the Court can act summarily to dismiss filings that are truly frivolous. For example, the Court could grant the motion to file the complaint but simultaneously order the plaintiff state to show cause why the complaint should not be dismissed for lack of standing or for failure to state a claim upon which relief can be granted.

The Court’s current practice is particularly troubling in cases where the proposed complaint alleges the violation of federal law by the defendant state. As Chief Justice Marshall observed, “the primary motive” for creating a “judicial department” for the new national government was “the desire of having a [national] tribunal for the decision of all national questions.” So, even if party status alone in a state-against-state case did not put it within this Court’s original, exclusive jurisdiction, the case’s assertion of federal questions would, as one prominent scholar has said, require that “some federal court—supreme or inferior—be open, at trial or on appeal, . . . to hear and resolve finally [the] given federal question.” And because, under the plain language of Section 1251, no “inferior” court has original jurisdiction over cases like this one and this Court does have jurisdiction, this Court must exercise that jurisdiction.

The complete amicus brief may be found at Alabama v. California