ORIGINAL INTENT: UNDERSTANDING THE SUPREME COURT'S ORIGINAL JURISDICTION IN CONTROVERSIES BETWEEN STATES.

• Author: Linsley, Kristin A.

1. INTRODUCTION

   At a time in which the closely watched cases reaching the Supreme Court tend to involve novel issues under the Bill of Rights or important federal statutory questions that have produced conflicts in the lower courts, one important category of cases on the Court's docket often goes unnoticed: those involving the Court's original jurisdiction over disputes between States. Original jurisdiction at the Supreme Court is somewhat of an oddity, in that the Court must act as both the trial court and the court of last resort in deciding these matters--an unusual posture for a Court that rarely resolves discovery disputes, takes live testimony, or makes original findings of fact. But the unique structure of our federalist form of government--with subordinate sovereigns losing some aspects of their separate sovereignty upon joining the union but retaining others--called for a unique judicial structure in which disputes between these subordinate sovereigns could be resolved in a way that avoided the partisan state court systems and accorded the States the dignity to which their sovereign status entitled them.

   Although Article III also created other bases for the Court's original jurisdiction, this article focuses on disputes between States, which from the inception have been the mainstay of the Court's original jurisdiction jurisprudence, and have represented the strain of Article III power consistently reserved for exclusive resolution by the Court. Several features of the Court's original jurisdiction distinguish it from the Court's "appellate" docket--a term that is used broadly to describe its review of cases originating in the lower federal courts or the state courts, and that includes both the Court's certiorari jurisdiction and, in earlier years, appeals as of right in certain categories of cases.

   First, the history of, and rationale for, the Court's original jurisdiction are central to the manner in which the Court has defined the contours of the jurisdiction. Part II of this article explores the background of the grant of original jurisdiction in Article III, the manner in which that grant has been construed and defined in disputes between States, and the early history of the Court's exercise of original jurisdiction. As this history shows, the Court consistently has given great weight to the historical and structural rationale for its original jurisdiction in determining how that jurisdictional grant should be exercised and applied.

   Second, in part because of this historical and structural context, the Court's original jurisdiction has produced very different issues and rules than has its ordinary appellate docket. Because the very nature of original jurisdiction requires the Court to act as a trial court and as a court of last resort, the rules for such cases are very different from either type of jurisdiction standing alone. The Federal Rules of Civil Procedure and the Federal Rules of Evidence, for example, are said to serve as "guides," (1) but the Court is not bound to follow them, and a State seeking to invoke the Court's jurisdiction must seek the Court's leave to do so. (2) Further, the intensely time-consuming responsibilities of the trial court role create the potential that original jurisdiction cases could occupy an inordinate portion of the Court's limited resources, and could involve the Court in managing petty disputes between the States or their constituents. For precisely these reasons, the Court has guarded its original jurisdiction carefully, reserving the "delicate and grave" (3) exercise of that jurisdiction for the narrow class of disputes that truly implicate the concerns that necessitated the constitutional grant. And to address the practical concerns, the Court frequently appoints Special Masters to assist with these cases. (4) Part III discusses some of these unique issues and practical concerns and the manner in which the Court has addressed them.

2. THE SOURCE AND NATURE OF THE COURT'S ORIGINAL JURISDICTION

   Article III, Section 1, of the Constitution states that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." (5) Article III, Section 2, itemizes the specific categories of cases to which the "judicial Power" shall extend, including "Controversies between two or more States," and goes on to state that "[i]n 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." (6)

   1. Nature of Original Jurisdiction

      The term "original" jurisdiction is distinguished from "appellate" jurisdiction. It means that the Court has "the power to hear and decide a lawsuit in the first instance"--in other words, to act as a trial court--whereas "appellate" denotes the power "to review the judgment of another court that has already heard the lawsuit in the first instance." (7) The distinction between "original" and "appellate" jurisdiction was a settled feature of English law at the time the Constitution was adopted. (8) William Blackstone used the term "original jurisdiction" to describe the role of the king to resolve disputes between American provinces over the "extent of their charters" or similar matters: "Whenever also a question arises between two provinces in America, or elsewhere, as concerning the extent of their charters and the like, the king in his council exercises original jurisdiction therein, upon the principles of [feudal] sovereignty." (9) Although of course this type of original jurisdiction would not be the same as that exercised by the Court under Article III--given that the king, as the source of the charters that created certain rights (including boundaries) for American provinces before the Revolution, naturally would have been called upon to interpret those charters so long as England controlled the colonies--the reference nonetheless would have provided a model for similar resolution by a Supreme Court, particularly given that some royal charters continued to be relevant to such matters as boundaries even after the Constitution was ratified. (10)

      The original jurisdiction bestowed on the Supreme Court was indeed of a different character than that exercised by the crown, and was crucial to the Constitutional design. At the time the Constitution was ratified, and under the Articles of Confederation, each state was sovereign in its own right, subject only to powers "expressly delegated" to Congress. (11) The Articles did not provide for any federal judiciary or for a Supreme Court, (12)" and any disputes between states over "boundary, jurisdiction or any other causes whatever" were to be resolved by Congress, which was directed to convene a court to resolve such disputes under its auspices. (13)

      Early drafts of Article III of the Constitution would have vested all original jurisdiction in state courts, (14) but the framers quickly came to the view that state court jurisdiction would not be satisfactory for certain important categories of cases--either because state courts might entertain biases in favor of their own citizens or local governments, or because certain disputes might implicate national interests at the highest level. After several rounds of drafts, the final version of Article III conferred original jurisdiction upon the Supreme Court over disputes between States and other important categories of cases. (15)

   2. Rationale Behind Original Jurisdiction for State Disputes

      The context of the States' entry into the United States makes clear why the Court's original jurisdiction was so crucial. Before the formation of the federal union, the states were separate sovereigns, and, as such, had at least the theoretical ability to resolve disputes among themselves by war or negotiation. (16) When the states ratified the Constitution and thereby joined the Union, they expressly relinquished these customary international law means for settling disagreements among sovereigns. Article I, Section 10, of the Constitution states that "[n]o State shall enter into any Treaty, Alliance, or Confederation," and that "[n]o State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State,... or engage in War." (17) By agreeing to these restrictions, the States gave up a significant part of their ability to resolve any differences that might arise between them, and it was essential that the Constitution provide them an alternative means of resolving disputes that would not require the use of the courts of one of the involved states--because, as Alexander Hamilton explained, "no man ought certainly to be a judge in his own cause" (18)--and that would properly recognize the dignity and sovereignty of each involved State. As Hamilton further noted, it would "ill suit [the] dignity [of the states] to be turned over to an inferior tribunal." (19)

      For this reason, it was essential to the States and to the preservation of the Union that a mechanism be provided to resolve disputes that already existed, and inevitably would arise in the future, between and among the States. As the Court recounted in United States v. Texas, (20) at the time the Constitution was adopted, there already were controversies between eleven states as to their boundaries, which disputes "had continued from the first settlement of the colonies," and it was deemed essential to have a national tribunal "for the settlement of these and like controversies that might arise." (21) Article III delegated this role to the Supreme Court, as a superior, national tribunal to "match the dignity of the parties to the status of the court." (22) As the Court explained in Rhode Island v. Massachusetts, a complaining state,

      [b]ound hand and foot by the prohibitions of the [C]onstitution ... can neither treat, agree, or fight with its adversary, without the...