Considering the constitutionality of nonstate intervenors in original jurisdiction actions.

• Author: Sullivan, John C.

One of these things is not like the others, One of these things just doesn't belong, Can you tell which thing is not like the others By the time I finish my song? (1) INTRODUCTION

It is not often that one begins to hum a familiar Sesame Street tune when reading Supreme Court opinions--but with Chief Justice John Roberts, you never know what you might get. His dissent in Alabama v. North Carolina (2) begins with a not-so-subtle jab, based on the children's game "One of these things is not like the others," that the question of allowing nonstate party intervenors in an original jurisdiction case in the Supreme Court should not have been a hard one. (3) But could the answer really be that simple?

To address the question of intervenors, original jurisdiction itself must first be considered. Article III's language is familiar: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction." (4) However, as both a practical and statutory matter, "the Supreme Court [obviously] does not have original jurisdiction over every case in which a state is a party." (5) Rather than remaining completely open-ended concerning cases involving states, this jurisdiction has been limited by Congress (6) to (1) controversies between states, (2) controversies between the United States and a state (in response to the decision in United States v. Texas (7)), and (3) cases where a state sues the citizens of another state. (8) This also comports with the Court's understanding of its role. (9) Noticeably absent from this grouping of scenarios is the possibility of a citizen suing a state. Though Article III could encompass such jurisdiction, the Supreme Court has controversially determined that, once Chisholm was allowed to sue Georgia, (10) the ratification of the Eleventh Amendment (11) ensured that a citizen could not sue a state in federal court under any circumstances--let alone in an original action of the Supreme Court. (12)

As it stands, the Supreme Court hears original jurisdiction actions on an almost purely discretionary basis. (13) Chief Justice Rehnquist highlighted, in Mississippi v. Louisiana, (14) the progression of the Court's model. (15) Originally, the Court used "discretion not to accept original actions in cases within [its] nonexclusive original jurisdiction, such as actions by States against citizens of other States and actions between the United States and a State. [The Court has] since carried over its exercise to actions between two States, where [its] jurisdiction is exclusive." (16) Though state vs. state jurisdiction is statutorily committed to the exclusive original jurisdiction of the Supreme Court, the litigants must still pass a two part test in order to be granted leave to file on the Court's original docket. (17) However, "[w]hatever the Court's intention to limit the scope and exercise of its original jurisdiction, under a theory of strict construction it cannot refuse to entertain cases falling within its original jurisdiction if no other forum is available." (18)

One thing left open to the Supreme Court was the question of intervention by nonstate parties in these original jurisdiction cases. Intervention is "the procedural device whereby a stranger can present a claim or defense in a pending action or in a proceeding incidental thereto, and become a party for the purpose of the claim or defense presented." (19) While it is apparent that the founders did not envision citizens being able to haul states into federal court, (20) they were silent as to those citizens presenting claims or defenses in matters that were already before the Court. Given the common-law pleading regime persistent at the time of the founding and code-pleading afterward, this is not surprising. (21) It is only with the rise of the transactional model and its more liberal ideas of intervention and case management that these types of questions arise. (22) Once facts became the unit of dispute, rather than legal entitlements, intervention became a staple of the modern suit (23) and the Court has struggled since with how to employ it. (24)

The first instance of a nonstate party intervening as a plaintiff seems to have taken place in 1922, in Oklahoma v. Texas. (25) The occasion for it happening in that case seems to be unique (26) and, since that time, similar interventions against states have occurred infrequently and not without questions as to their propriety. (27) The question recently resurfaced in two cases on the Supreme Court's original jurisdiction docket during the October 2009 Term. (28) In both instances, the Court held, over vigorous dissents by the Chief Justice, that non-state parties would be allowed to intervene in a suit against a state. (29) The question, therefore, arises: were these decisions correct, and what should the Court's position be moving forward?

Part I of this Note will discuss the relevant history of nonstate party involvement in original actions in the Supreme Court. While Justice Alito traces the phenomenon itself back to the 1700s, (30) the more difficult question of intervention as plaintiffs, and the form under which the Court currently deals with the issue, is relatively new. (31) An overview of these previous cases will help to shed light on the current state of the Court's jurisprudence in this area. Part II will examine the most recent cases in order to discern, if possible, a consistent position regarding that jurisprudence. The Alabama and South Carolina opinions, while both allowing nonstate intervention, contain potentially conflicting criteria for the action. While South Carolina allows for nonstate intervention when a party has a "unique ... interest," (32) Alabama held that sovereign immunity did not bar such intervention as long as the "same claims" (33) are asserted. This difference should be recognized and addressed before the Court continues to entertain such motions from nonstate parties. Part III will take a particular look at Chief Justice Robert's argument against such intervention in Alabama. While his South Carolina argument based merely on sovereignty concerns garnered four votes, (34) the seemingly stronger argument, with which only Justice Thomas agreed, is the one articulated in Alabama based on the Eleventh Amendment. (35) Because South Carolina involved defendant intervenors, the state immunity argument did not surface in the Chief Justice's dissent there. The analysis in Alabama is different. Due to both Eleventh Amendment and Federalism concerns, Part IV ultimately concludes that, while nonstate defendant intervenors in original jurisdiction actions are within the scope of Article III, the Court stepped outside of constitutional bounds by allowing nonstate parties to intervene as plaintiffs. Since this directly resulted from attempting to reconcile the sensible standard of intervention outlined in South Carolina with the inexplicably expanded standard in Alabama, (36) a return to the South Carolina standard can both bring consistency to original action jurisprudence as well as avoid the Eleventh Amendment pitfall present in Alabama.

1. FROM PLAINTIFFS TO ONLY DEFENDANTS TO PLAINTIFFS AGAIN--THE HISTORY OF NONSTATE INVOLVEMENT IN SUPREME COURT ORIGINAL JURISDICTION CASES

   The Constitution clearly allows for two types of suits in which states are quite frequently involved: those between two or more states and those between states and citizens. (37) And when the parts of Article III, section two are taken together, it is also clear that these types of suits fall within the original jurisdiction of the Supreme Court. (38) Beyond that, the Court has traditionally made room on its original docket for cases that combine these components (39) and cases that are only partially formed by the presence of these components. (40)

   1. Original Jurisdiction Cases Prior to 1922--The Beginnings of Nonstate Party Involvement

      It did not take long for a nonstate party to appear before the Supreme Court in an original jurisdiction action. One of the first occurrences was in 1792 "[i]n Georgia v. Brailsford, (41) the fourth case entered upon 'the original docket' of the Supreme Court." (42) While the Justices were divided as to the outcome, none of them had a jurisdictional problem with the state of Georgia suing two citizens of South Carolina. (43) This was not uncommon, and while these types of cases are not exclusive to the original jurisdiction of the Court, it was and still is appropriate for the Court to hear them. (44) Somewhat ironically, Chisholm v. Georgia, (45) the case immediately in front of Brailsford on the original docket, (46) turned the tables by allowing a citizen of South Carolina to sue Georgia. (47) The uproar over the outcome famously sparked an Amendment to the Constitution. (48) But prior to the passage of the Eleventh Amendment, this type of interaction by a nonstate party was clearly acceptable. Therefore, while an argument exists that nonstate parties should not be allowed to sue in original actions of the Supreme Court, (49) it is undisputed that the Constitution allows for them to be sued in such cases; that was never in doubt.

      Once nonstate parties were involved in suits with states, they began to also take part in suits between states. Just a few years after Chisholm, the Court heard New York v. Connecticut (50)--the first original jurisdiction case between two states. (51) This case serves as a precursor to the modern state of jurisprudence in this area by virtue of the nonstate parties also involved. The full name of the case was "The State of New York v. The State of Connecticut et al.," and it involved plaintiffs from a prior civil suit concerning land being made defendants in the action between states over a border dispute. (52) Though the 'et al.' in the case were not intervenors, they still represented nonstate party involvement in an...