The modification of decrees in the original jurisdiction of the Supreme Court.

• Author: Mandilk, James G.
• Position: Introduction through IV. When Does the Supreme Court Actually Modify Its Decrees? p. 1880-1909

NOTE CONTENTS INTRODUCTION I. THE ORIGINAL JURISDICTION OF THE SUPREME COURT A. History and Procedure B. The Importance of Finality in the Original Jurisdiction 1. State Parties and Additional Litigation Costs 2. Judicial Resources 3. Reliance Interests 4. Encouraging Settlement and Avoiding Enforcement Issues II. COMPARING RELEVANCE OF CHANGED CIRCUMSTANCES IN BOUNDARY DISPUTES AND WATER RIGHTS CASES A. Boundary Disputes and the Specter of War B. Water Rights and Changed Circumstances III. THE SUPREME COURT'S PURPORTED APPROACH TO ORIGINAL JURISDICTION DECREE MODIFICATION IV. WHEN DOES THE SUPREME COURT ACTUALLY MODIFY ITS DECREES? V. LOCATING "GENERAL PRINCIPLES OF FINALITY AND REPOSE": FROM LORD BACON TO RUFO A. Finality of Judgments: The Flexibility of Equity B. From Bacon to Horne: Development of the Flexible Test in Equity C. The Finality Rule and Its Application in Original Jurisdiction Cases 1. Water Rights 2. Boundary Disputes 3. Federal-State Title Disputes 4. Other Cases CONCLUSION APPENDIX A: OUTCOMES OF ALL ORIGINAL JURISDICTION CASES BY CATEGORY APPENDIX B: ACTIVITY IN ORIGINAL JURISDICTION CASES FROM APRIL 25, 1993 THROUGH DECEMBER 31, 2015 New Cases Additional Activity in Pre-1993 Cases INTRODUCTION

The Constitution reserves the power to invoke the original jurisdiction of the Supreme Court--to ask the Court to swap its lofty appellate musings for the gritty, fact-laden inquiries of a trial court--to a few parties whose dignitary interests are thought to require it. (1) These parties are sovereigns and their representatives: states; the United States; and in theory--though no longer in practice--ambassadors, public ministers, and consuls. (2) The few parties who possess this power rarely invoke it, (3) and even then the Court may decline to exercise its jurisdiction if the "seriousness and dignity of the claim" is insufficient. (4) When the Court allows an original jurisdiction case to go forward, however, the resulting litigation--like the embattled sovereigns--proceeds on an unusually long time horizon. The case may turn on events that occurred before a state joined the union, (5) an interstate compact formed before the ratification of the U.S. Constitution, (6) or a royal proclamation that predates the Declaration of Independence. (7) Once the Supreme Court decides an original jurisdiction case, its judgment can spur decades of additional litigation. (8) This longevity, (9) combined with the specificity of many decrees, (10) can produce decrees that no longer meet the parties' needs decades later." In such circumstances, the Court faces a question on finality: when should it modify its own judgments ?

Before addressing this normative question, however, one first needs a clear empirical understanding of the Court's current practice. To investigate this practice, I surveyed all 263 original jurisdiction cases over the Court's two-century history. I categorized them based on the nature of the dispute and the resolution of each case and analyzed how often the Court has modified its decrees. (12)

The results of my survey demonstrate that the Supreme Court's words on finality have not matched its actions. In Arizona v. California, (13) the principal case on point, the Court claimed to be guided in its exercise of discretion by "principles of res judicata." (14) But its announced doctrine does not accurately describe its approach across the original docket. The data suggest that (1) the Court frequently modifies decrees, and (2) the Court is more likely to modify decrees in cases where dynamic fact patterns are likely to arise. Building on these findings, the Note proposes an alternative descriptive account: instead of applying principles of res judicata, as Arizona v. California purports to do, the DECREE MODIFICATION IN SUPREME COURT ORIGINAL JURISDICTION CASES Supreme Court in practice has used a flexible test like the one that district courts have long applied when considering requests for decree modifications. (15)

Moreover, the Court should continue to apply its flexible test to requests for decree modifications in original jurisdiction cases. The test dates back to Lord Francis Bacon's ordinances. Though it has changed somewhat over the centuries, the standard has survived the test of time in broad strokes because it takes into consideration the Court's concern with "general principles of finality and repose" (16) and balances that concern against case-specific facts that may justify modification.

The Court, then, should explicitly identify its flexible standard as the test that it has applied and will continue to apply in its original jurisdiction cases. Aligning the Court's purported test with its actual approach to requests for decree modification will provide litigants with clearer and more accurate guidance than the Court's announced--yet ignored--doctrine of "principles of res judicata."

The issue of finality in the Supreme Court's original jurisdiction has received no scholarly attention until now. In general, the literature on the Supreme Court's original jurisdiction is relatively sparse. (17) Scholars have addressed a number of questions peculiar to the original jurisdiction, such as whether the Court's extensive delegation of power to special masters is troubling (18) and whether Congress or the Court has the power to prescribe the procedures original jurisdiction litigants must follow. (19) Some commentators have examined procedural questions, such as what the Court would do if a Justice recused himself or herself and the vote was tied, (20) or how the early Court conducted a jury trial. (21) However, no scholar has squarely addressed the finality of judgments in original jurisdiction cases.

This Note begins to fill that gap. Section I.A briefly describes the history of the Court's original jurisdiction. It then offers a procedural outline for a modern original jurisdiction case. This procedure is characterized by "gatekeeping"--the Supreme Court's calculated effort to protect itself from time-consuming original jurisdiction cases--and provides the background for the Court's stated interest in finality in original decrees. In the same vein, Section I.B enumerates courts' and litigants' interests in finality and highlights the heightened stakes of finality in the original jurisdiction.

Part II compares the quintessential original jurisdiction case--the dispute over an interstate boundary--with water rights cases. In boundary disputes, finality was once thought essential to prevent war. On the other hand, as water rights cases illustrate, changed circumstances sometimes outweigh finality interests, making decree modification essential. The case studies in this Part show that the Supreme Court modifies decrees more frequently in water rights cases, which have dynamic fact patterns, than in boundary disputes, where the facts remain relatively static.

Having examined the potential for variation in decree modifications in original jurisdiction cases, Part III considers the standard for modifying decrees in original jurisdiction cases that the Court announced in Arizona v. California. (22) There, the Court declared that it would exercise its discretion and apply "principles of res judicata" and "general principles of finality and repose" to judgments in original jurisdiction cases. (23) The precise meaning of these phrases is unclear, especially when taken together. The case therefore does not give litigants and the future Court sufficient guidance for deciding whether to modify decrees. Res judicata is a common-law doctrine that takes effect when a court enters a final judgment. (24) Later, if a party to the original proceeding brings the same claim again, the claim is precluded. It seems anomalous that the Court would apply this intercase concept to a motion to modify a decree within the same case. At the same time, res judicata is the strongest finality principle on the menu: when it applies, the trial court lacks power to entertain the new claim. By invoking "principles of res judicata," then, the Court seems to suggest that litigants should expect motions for modification to be denied.

If the Court truly applies such a strict finality principle, then decree modifications should be relatively rare, and they should not differ based on the type of original jurisdiction case at issue. Part IV compares these predictions with the Court's actual practice. Specifically, I report the findings of a survey of all cases on the Court's original jurisdiction docket from constitutional ratification to the end of 2015. The results indicate that decree modifications are relatively common: of ninety-seven original jurisdiction cases with decrees, decrees have been modified in twenty-eight cases. (25) Moreover, the frequency of modification has varied depending on the type of case at issue. The data show that the Court is unlikely to modify its decree in cases establishing interstate boundaries but has regularly modified decrees in water rights cases. These findings suggest that the Court, in assessing motions for...