Bench Memos

Law & the Courts

Justice Alito’s Dissent on Supreme Court’s Exclusive Original Jurisdiction

In an order yesterday, the Supreme Court denied the motion filed by the state of Texas for permission to file a complaint against the state of California over a California law that prohibits state-funded or state-sponsored travel to any state with laws that fail to meet specified standards regarding discrimination.

In an interesting dissent (pp. 12-21 here) that does not touch on the substance of the California law, Justice Alito, joined by Justice Thomas, argues that Congress’s statutory mandate that the “Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States” requires the Court to allow Texas to file its complaint. Noting that the Court’s action “is consistent with a practice the Court has followed for the past 45 years,” Alito objects that the Court “has never provided a convincing justification for the practice.”

I’m sure that the justices enjoy the luxury of picking which cases they want to decide, but, when it comes to a complaint by one state against another, I’d hope that they would provide a persuasive justification for acting in apparent defiance of Congress’s mandate.

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