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Thursday, August 19, 2010

Why Not File U.S. v. Arizona In US Sup Ct?

Around the time of the ruling in U.S. v. Arizona, I received several e-mails and comments from readers wondering why the District Court had jurisdiction, in light of Article III, Section 2 of the Constitution (emphasis mine):
... 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. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make....
I never posted on it, because I didn't know the answer, and quick research did not reveal the answer.  It seemed too simple, so I figured there must be a catch. 

And there is and there isn't.  As explained by Eugene Volokh in a post Why Wasn’t United States v. Arizona Filed in the Supreme Court from the Outset?, it is important to distinguish between exclusive and non-exclusive jurisdiction; qualified cases might be brought in the Supreme Court, but that does not mean that they must.

So it seems pretty clear that the District Court had jurisdiction, but that does not answer the question of whether the case could have been filed in the first instance in the Supreme Court. 

For the answer, of sorts, read the Volokh post.  The short version is that it is not clear but it appears that 200 years of jurisprudence have pretty much read that constitutional language out of existence.

Who'd have thought that could happen?

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  1. I am not a lawyer so maybe I should not speak on the matter. My understanding is that the SCOTUS may elect to assume a case in State matters where it is initiated in a lower court. ie Original Jurisdiction.

    As a tactical matter, the plaintiff would probably not prefer to launch right into SCOTUS. Better to see how your standing plays out in the lower court, refine your case and then appeal. Doing so also bounds the DoJ as a lower court might disavow certain precepts offered that the SCOTUS would affirm. Plaintiff essentially forcing an early exposure of the Solicitor Generals case.

  2. Who thought that could happen? Not the framers of the constitution.

    Joe Sobran has a wonderful piece that talks more directly at this point:


  3. See these by an attorney who goes by the original intent:
    July 29)
    August 18)