Saturday, January 3, 2009
This week’s Saturday Evening Review is another “classic” edition, taking a new look at some familiar legal scholarship. Or perhaps this scholarship is not so familiar? It treats Art. III § 2’s provision:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.
As a reminder, this provision was one of the provisions Justice Marshall cited in Marbury v. Madison, as inconsistent with the section 13 of the Judiciary Act of 1789.
So what does this provision in Art III § 2 mean? And how often is it actually invoked?
A Student Note, The Original Jurisdiction Of The United States Supreme Court, 11 Stan. L. Rev. 665 (1959), provides a trenchant review of the 123 cases arising under this constitutional provision from the Court’s first term in 1789 until 1959. It has a terrific appendix of the cases, which, if accessed in an electronic database, will provide links to case documents, including motions as well as opinions.
The Article is mostly a survey, and to the extent it has a thesis, it is this:
It is apparent that the Supreme Court is reluctant to exercise its jurisdiction in original cases. The very nature of an original proceeding suggests the difficulties confronting an appellate court forced to assume the role of a trial court.
Id. at 695.
A 1993 article, Discretionary Gatekeeping: The Supreme Court's Management Of Its Original Jurisdiction Docket Since 1961, 45 Maine L. Rev. 185 (1993), serves as an update of the 1959 note, emphasizing state v. state controversies. Its author, Vincent McKusick, is a former Chief Justice of the Maine Supreme Judicial Court, former law clerk to Judge Learned Hand and Felix Frankfurter, and a special master in three state v. state original jurisdiction cases in the United States Supreme Court. He concluded that
The Supreme Court's failure to expand the use of its original jurisdiction does not come from any lack of trying on the part of potential plaintiffs eager to “start at the top” to get a final resolution of disputes involving states. The lesson to be learned from the 116 active original jurisdiction cases on the Supreme Court's docket since 1961 is that those plaintiffs should look elsewhere to litigate their claims, except for those very few that unmistakably fall within the Court's traditional exercise of its trial court jurisdiction.
Id. at 205. Like the 1959 Note, McKusick's article includes some appendices, which again have useful hyperlinks if accessed in a database, with materials about the 116 cases from 1959 until 1993.
The Supreme Court’s original jurisdiction is not something that garners much attention from ConLawProfs, seeming more suitable for a course on FedCourts (which many of us also teach). But state v. state controversies and lawsuits against foreign ambassadors make for some interesting issues – looking forward to in-class problems for next semester, perhaps connected to Marbury v. Madison.