Who You Gonna Appeal To?

When the legislative or executive branches of government violate the Constitution, we generally look to the courts for correction. But where do you go when a rule of the Supreme Court itself violates the Constitution?

The Constitution gives the Supreme Court original jurisdiction over, among other cases, suits between States. See Art. III, § 2, cl. 2. Congress has made that jurisdiction exclusive, i.e., a State can’t file its suit against another State anywhere else. See 28 U.S.C. § 1251(a). Yet the Supreme Court’s Rule 17 requires States to ask permission to file an original suit there. Is that constitutional? I have long believed it is not, and today I have some distinguished company. But where would an aggrieved State appeal this question?

Arizona v. California, No. 150, Orig., is an interstate tax dispute. Arizona believes that California is exceeding constitutional limits in taxing Arizona businesses with minimal contact with California, and it has a substantial argument. The Court denied the motion for leave to file. Justice Thomas, joined by Justice Alito, dissents:

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” §2, cl. 2 (emphasis added). In this circumstance, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

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Although I have applied this Court’s precedents in the past, see Wyoming v. Oklahoma, 502 U. S. 437, 474, n. (1992) (dissenting opinion), I have since come to question those decisions, see Nebraska, supra, at ___ (dissenting opinion) (slip op., at 3). Arizona invites us to reconsider our discretionary approach, and I would do so. I respectfully dissent from the denial of leave to file a complaint.

I think that is right, but Arizona has nowhere to appeal.

In this case, of course, the taxpayers themselves can file in the lower courts, and Arizona sought to use the State v. State original jurisdiction to short-cut the process. No doubt the Supreme Court majority is appalled by the prospect of having every interstate tax dispute brought directly to its doorstep any time one aggrieved taxpayer can convince one state attorney general to do so.

A complete statutory solution would abrogate Rule 17 as applied to State v. State suits but also trim back the standing of States to file suit when the State itself is not the directly interested party. When it truly is the State itself against another State (usually about water, boundaries, or both), the Constitution requires the Supreme Court to take the case, in my opinion, and Rule 17 is unconstitutional to the extent it allows the high court to reject these cases.

All this, of course, has nothing directly to do with crime, but it involves issues of federalism, judicial review, and jurisdiction, and those topics are sufficiently related to our work to be worth noting here.