38. "Original" Jurisdiction and the Wyandotte Doctrine

Alaska is asking the justices not just to hear as a trial court its challenge to the EPA's veto of the "Pebble Mine," but to overrule a 52-year-old precedent holding that the Court doesn't have to

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

For the last week of July, there was an unusual amount of Court-related activity and news. And that was before Justice Alito’s “interview” with David Rivkin and James Taranto in the Wall Street Journal (about which I’ll have a fair amount more to say in Thursday’s bonus issue).

Quickly summarizing the case-related activity:

1. In an unsigned and at least formally unexplained order, the Court granted the Mountain Valley Pipeline’s application to lift three stays that had been issued by the Fourth Circuit—an application that I covered in detail last Monday. Those looking for tea leaves might focus on the last sentence of the Court’s ruling: “Although the Court does not reach applicant’s suggestion that it treat the application as a petition for a writ of mandamus at this time, that determination is without prejudice to further consideration in light of subsequent developments.” This sure seems like a not-so-subtle hint to the Fourth Circuit that it lacks jurisdiction over these petitions (else, why would mandamus potentially warrant further consideration). But because the Court provided no further explanation, we don’t know if that’s because a majority believes that (1) the jurisdiction-stripping provision is constitutional; or (2) the constitutionality of the jurisdiction-stripping provision is a question for the D.C. Circuit, not the Fourth Circuit, to resolve. As I wrote last week, one can think (2) is true without taking any position on (1). As for what happens now, the Court’s action clears the way for work on the pipeline to continue, regardless of how the Fourth Circuit rules on the pending petitions for review.

2. Two justices granted temporary (“administrative”) stays while the full Court considers whether to grant emergency applications in other cases. Justice Alito granted an administrative stay of a nationwide injunction entered by Judge Reed O’Connor against the ATF’s rules for “ghost guns.” Alito’s stay expires at 5 p.m. (ET) this Friday (with a response due by 5 p.m. on Wednesday). And Justice Gorsuch granted an administrative stay of the Tenth Circuit’s mandate in a dispute over the authority of the City of Tulsa to issue a traffic citation to a tribal member. Gorsuch’s stay expires at 5 p.m. (ET) on Wednesday; the response is due today at noon.

3. The federal government filed a second emergency application (alongside the ghost guns application), asking Justice Sotomayor to prevent the Second Circuit’s approval of the Sackler/Purdue Pharma bankruptcy reorganization plan from going into effect while the government appeals that ruling to the Supreme Court. Justice Sotomayor has called for a response by noon (ET) this Friday.

4. And another emergency application that’s still pending as of this morning comes from Epic Games, which is asking the Court to put into immediate effect the Ninth Circuit's ruling in its antitrust dispute with Apple, arguing that the lower court shouldn't have stayed its mandate pending Apple's appeal. Justice Kagan has yet to call for a response, which may signal that she is inclined to rule on the application by herself.

This flurry of emergency applications is at least outwardly unrelated. That said, it seems worth noting that at least some of these applications are in contexts in which, as recently as six years ago, it would have been unlikely, at best, that the applicants would have come to the justices for emergency relief. Perhaps it’s no surprise that, as the Supreme Court has shown more willingness to grant novel forms of emergency relief (and emergency relief in novel contexts), lawyers from across the spectrum have increasingly sought to take advantage of that mechanism. In any event, it’s yet another reminder that the work of the Court doesn’t wrap up when the justices rise for their summer recess.

The Court also handed down a routine mid-summer Order List on Monday—with no real developments of note.

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The One First Long Read: The “Wyandotte Doctrine”

I was prompted to write about this week’s topic after reading a fascinating new filing on behalf of the State of Alaska, which is trying to invoke the Supreme Court’s “original” jurisdiction in a dispute with the federal government over the EPA’s veto of the so-called “Pebble Mine.” Alaska’s request provides a great opportunity to write about my favorite nerdy Supreme Court topic (the Court’s “original” jurisdiction), and it implicates a really interesting debate over whether/when the justices can choose to not exercise it.

The proposed site of the Pebble Mine; photo credit: Acacia Johnson/NYT

Let’s start with the law. Article III of the Constitution divides the Supreme Court’s jurisdiction into two categories: “Original” jurisdiction (i.e., cases that start in the Supreme Court, in which the justices serve as a de facto trial court of first—and last—instance); and “appellate” jurisdiction (i.e., cases that start in some lower state or federal court, the decisions of which can then be reviewed by the Supreme Court as an appellate tribunal). Per Article III, the Court has original jurisdiction only “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” And the actual constitutional holding in Marbury v. Madison (that is, the constitutional problem Chief Justice Marshall identified in the Judiciary Act of 1789) was that Congress can neither expand nor contract the constitutional grant of original jurisdiction (in contrast to its broad power over the Court’s appellate jurisdiction).

And yet, Congress has never given the Supreme Court original jurisdiction over every case identified in Article III. For instance, by statute, the Supreme Court can hear cases “affecting ambassadors” only when the ambassador is a party (versus, say, a suit against an ambassador’s spouse). Likewise, the Supreme Court can only exercise original jurisdiction over cases in which states are plaintiffs; unless a state is sued by the United States, it’s not enough for a state to only be a defendant. (The Court has also interpreted the relevant statutes to not confer original jurisdiction over criminal prosecutions by states, even though states are, quite obviously, parties to such cases.)

And critically for present purposes, Congress has distinguished between cases in which the Supreme Court’s original jurisdiction is “exclusive” (meaning only the Supreme Court can hear such disputes); and those in which it is concurrent with lower state and federal courts. Only disputes between two or more states fall into the former category; every other species of the Court’s original jurisdiction is “concurrent,” meaning that lower state or federal courts can also hear them as an original matter.

One of the most interesting questions that has arisen about these statutory rules is whether the Court’s original jurisdiction is also “mandatory”—meaning that the justices must hear any case properly falling within the statutory and constitutional grants. In its 1971 decision in Ohio v. Wyandotte Chemicals Corp., the Court at least partially answered that question in the negative. At least where lower courts can also hear the state’s claims, Justice Harlan wrote for the majority, the justices are under no obligation to exercise original jurisdiction rather than waiting for those issues to come to them through an appeal—all the more so because … they’re not very good at it. (The normal procedure in an original suit that the justices agree to hear is the appointment of a “special master,” who effectively acts as a magistrate—handling all procedural and evidentiary issues, and then issuing a “report” recommending a disposition that does not bind the justices. The parties are then allowed to file “exceptions” to the report—and those exceptions become the basis for the Supreme Court’s plenary review, which, by that point, looks a lot more appellate anyway.¹

Here’s Harlan in Wyandotte:

This Court is . . . structured to perform as an appellate tribunal, ill-equipped for the task of factfinding and so forced, in original cases, awkwardly to play the role of factfinder without actually presiding over the introduction of evidence. Nor is the problem merely our lack of qualifications for many of these tasks potentially within the purview of our original jurisdiction; it is compounded by the fact that for every case in which we might be called upon to determine the facts and apply unfamiliar legal norms we would unavoidably be reducing the attention we could give to those matters of federal law and national import as to which we are the primary overseers.

. . . In our opinion, we may properly exercise such discretion, not simply to shield this Court from noisome, vexatious, or unfamiliar tasks, but also, and we believe principally, as a technique for promoting and furthering the assumptions and value choices that underlie the current role of this Court in the federal system. . . .

I talk a lot about Wyandotte both in my book and in my Federal Courts class, largely because Harlan’s opinion is as honest and candid a reflection on the justices’ approach to their role and their docket as anything the full Court has ever written.

In the 52 years since Wyandotte, it has been regularly followed in cases in which the Court’s original jurisdiction is concurrent (i.e., disputes between states and private parties, or between states and the federal government). To that end, the Court often (if not usually) denies leave to file original bills of complaint in cases in which a state seeks relief against any party other than another state (including cases in which a state seeks relief against the federal government). Like denials of certiorari, denials of leave to file typically come through unsigned, one-sentence orders. But we can usually infer that these are applications of Wyandotte.

Indeed, a cursory search of the Court’s docket suggests that the Court has not agreed to exercise original jurisdiction over a dispute that the lower courts could also hear since it granted a different Alaska v. United States in 2000. Wyandotte has become so pervasive that, at least based on my research, there has only been one previous attempt by a state to invoke the Court’s original jurisdiction in such a case (that is, a suit against a non-state defendant) since 2011—and only two more going back to the 2000 Alaska case. (The post-2011 example is Arizona v. Sackler.)

But Wyandotte has also been followed even in cases in which the Court’s original jurisdiction is exclusive—reflecting the view that, if it’s even possible for the claims being advanced by the plaintiff state to be resolved in other litigation in the lower courts (e.g., litigation between the state and other non-state parties), the justices should stay their hand. The Court first suggested as much in 1976. And over the last two decades, the Court has denied leave to file in at least 12 cases falling within its exclusive original jurisdiction (by contrast, the Court has granted leave to file during that same span in only 10 such cases).

This has led to a series of dissents from, among others, Justices White, Alito, and Thomas. Those dissents notwithstanding, that pattern has held for at least 47 years now—including in Texas’s … unprecedented … attempt to force the Court to intervene in the 2020 election by suing four states President Biden won in an attempt to challenge their results. As I teach my Federal Courts students, the distinction appears to be between claims that can only be brought by states against each other (which the Court usually agrees to hear), where there’s no meaningful likelihood that lower courts will be able to address the matter elsewhere, and claims that can be heard by lower courts in suits involving other parties (which the Court usually refuses to hear). States may be denied the ability to force an issue onto the Court’s docket, but the denials are usually reflective of the view that some court will have the chance to conclusively resolve the underlying issue, even if it’s not on the plaintiff state’s preferred terms.

There remains a healthy debate about whether Wyandotte should apply to cases in which the Supreme Court’s original jurisdiction is exclusive. My own view is that the answer is yes: as a textual matter, nothing in the statute says that the Court must hear such cases (and Congress has been on notice since at least 1976 that the Court views this jurisdiction as discretionary); it makes sense that the relevant decisionmaker in such cases should be the Court, not the states; and, as the Texas/2020 election example underscores, it would be problematic if states could effectively take over the Court’s docket by filing a flurry of meritless (if not frivolous) original actions that the justices have to resolve simply by naming other states as defendants.

But I also have a lot of respect for the competing position—and the argument that, even if the Constitution doesn’t require the Supreme Court to hear such disputes, Congress effectively has. (The debate over whether Wyandotte should apply to the Court’s exclusive original jurisdiction tends to be one of the more surprisingly feisty ones in my Federal Courts class.)

Against that backdrop, consider the new Alaska suit.

The underlying dispute is over the EPA’s “veto” of the Pebble Mine—a massive, and massively lucrative, mining project in Alaska that has at its origins decades of back-and-forth negotiation and agreements between Alaska, the federal government, and the Cook Inlet Region, Inc. (CIRI), one of 12 regional corporations established in Alaska by the Alaska Native Claims Settlement Act of 1971 to represent the interests of Alaska’s indigenous citizens. Among other things, Alaska claims that the EPA’s action violates the Administrative Procedure Act; breaches the federal government’s contractual obligations; and constitutes a taking without just compensation.

Here’s where things get complicated: By statute, Alaska’s claims apparently can’t be brought in a single lawsuit in the lower federal courts; the breach-of-contract and Takings Clause claims must go to the CFC—the Court of Federal Claims, which has exclusive jurisdiction in such disputes in which the amount in controversy exceeds $10,000; but that same court lacks the power to issue the injunctive relief that Alaska is seeking on its Administrative Procedure Act claim (which must instead be brought in a regular district court). Making things worse, the Supreme Court’s 2011 decision in United States v. Tohono O’odham Nation bars Alaska from proceeding simultaneously in the district court and the CFC; rather, under Justice Kennedy’s opinion for a 7-1 majority, the CFC can’t exercise jurisdiction over any claim that is simultaneously pending in another federal court—even if the suits seek different relief, including relief not available from the CFC. (I’m very much with Justice Ginsburg’s dissent, which read the relevant federal statute to not bar overlapping jurisdiction over claims the CFC can’t hear.)

Against that backdrop, Alaska makes two arguments for the Supreme Court’s exercise of original jurisdiction. First, and not surprisingly, it argues that this is not an appropriate case for application of the Wyandotte doctrine. Because Alaska can’t bring a single suit in a lower court, and because it can’t even simultaneously bring multiple suits in a lower court (but would have to go one-at-a-time, with the concomitant risk of the statute of limitations running before the second case can be filed), it should be allowed to consolidate its claims in an original action before the justices. Even as a staunch defender of Wyandotte, that strikes me as a persuasive argument for why the justices should nevertheless exercise their discretion to hear Alaska’s complaint—if they believe that the merits of Alaska’s claims are substantial.

But then Alaska makes an even bolder argument—suggesting that, as both a statutory and constitutional matter, the justices lack the discretion to choose to hear its original suit. Across the last three pages of its brief, Alaska argues that Wyandotte is wrongly decided, and that, instead, the Supreme Court’s original jurisdiction is always mandatory—even in cases in which Congress has made it concurrent with lower state and federal courts. (The theory apparently being that states can choose whether to invoke the Court’s original jurisdiction; but the justices can’t.)

Most of Alaska’s cited support for its argument comes from the White/Thomas/Alito dissents noted above. But Alaska’s argument would go much further than those dissenters. Unlike the White/Thomas/Alito position (which has always been limited to state-v.-state suits), on this view, the justices would have no choice but to hear any case that any of the parties listed in 28 U.S.C. § 1251 choose to bring to the Court, no matter how insubstantial the legal issues might be, or how contested the factual allegations are. Indeed, although Alaska doesn’t acknowledge it, this argument would presumably mean that the justices had to hear any case mentioned in the Original Jurisdiction Clause of Article III—not just those over which Congress has conferred original jurisdiction by statute. (Remember, again, that there’s a big gap between those two categories.)

In one fell swoop, it would almost surely lead to the Court’s docket being flooded with original filings—arming enterprising state attorneys general with the power to force virtually any issue immediately onto the justices’ plates (and the federal government, too—in any dispute in which it can name one or more states as a defendant). Thus, Nebraska could have forced the justices to decide whether Colorado should have been allowed to legalize marijuana possession. Arizona could have forced the justices to take up a complex dispute over efforts by the Sackler family to avoid some of its liability for the opioid crisis. Texas could have forced the Court to get right in the middle of the 2020 election. And so on.

In other words, it would take discretion away from the justices and give it to (usually elected) political officials—who could then use the Court’s original docket as a place to air political grievances, without any of the checks or constraints that would be imposed by having to first go through multiple rounds of lower-court litigation. That would be a stunning shift in both the structure of the Court’s docket and the role of the Court writ large. And, as suggested above, I think it would be a stunningly deleterious shift, to boot.

All of that said, it seems to me that it would be incumbent upon the Court, if it’s inclined to take up Alaska’s case anyway, to also take up this issue—so that the justices can expressly reject the argument that their original jurisdiction is mandatory, whether ever or at least in cases in which lower courts have concurrent jurisdiction. Otherwise, because denials of leave to file original bills of complaint are never explained, this view will sit out there as a reason why other states, going forward, will surely argue that discretion should also be exercised to hear their claims—and we’ll never know whether that was part of why the Court chose to take up a specific original jurisdiction case going forward.

This is all a lot of nerdy procedure, to be sure. But as with lots of other facets of the Court’s jurisdiction, hopefully it’s clear how and why there are profound implications not just for significant public policy disputes like the fight over the Pebble Mine, but for the justices’ (and the Court’s) role more generally, in some of the most arcane and technical features of their docket.

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SCOTUS Trivia: The Court’s Lone Jury Trial

As noted above, even when it chooses to exercise original jurisdiction today, the Supreme Court still effectively acts as an appellate body—conducing a form of appellate review of the factual findings and legal conclusions reached by a Court-appointed special master. But it wasn’t always so. I often push my students, when teaching Marbury, to think about what an evidentiary hearing would have looked like if the Court had been forced to hold one (since it was purporting to exercise “original” jurisdiction under section 13 of the Judiciary Act of 1789). On the specific question of whether Marbury’s commission had indeed been signed by President Adams, the best witness would surely have been Adams’s Secretary of State—i.e., Chief Justice Marshall.

It turns out, though, that the Court exercising its original jurisdiction also once conducted jury trials—to honor the Seventh Amendment’s requirement of jury trials in certain civil cases. As Lochlan Shelfer explains in a fantastic 2013 note in the Yale Law Journal, “In its first decade of existence, the Supreme Court impanelled juries as a matter of course at the beginning of every Term. The Court heard at least three cases with juries in the 1790s . . . .” Shelfer’s note focuses on the only one of those cases in which the proceedings were reported—Georgia v. Brailsford. There’s a lot of interesting and illuminating stuff in there. But whereas Shelfer’s bottom line is to use the Brailsford example as a model for how the Court could impanel a jury to hear an original jurisdiction dispute today, another way of looking at it is as yet another reason to see merit in the discretion that Wyandotte embraces.

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Happy Monday, everyone. I hope that you have a great week!!

1. Justice Scalia once referred to the special master in original jurisdiction cases as “our amanuensis.” I had to look it up, too.