David Schwartz discusses Monday’s argument in Kansas v. Colorado.

One might think that an original jurisdiction case about expert witness fees arising from a water compact dispute might lack some of the flair that other Supreme Court cases display.  Yet submerged within this rough lies a diamond of a constitutional issue, namely the contours of the Supreme Court's original jurisdiction authority as granted by Article III.  It was with this diamond that Kansas Attorney General Six opened in his oral arguments, claiming that the Constitution does not give Congress the power to make exceptions and regulations for the Court's original jurisdiction, unlike in the Court's appellate jurisdiction.  The justices had two responses to this argument.

The first, and most immediate, was a response by Chief Justice Roberts, who wondered if the Court even had to reach the constitutional issue, given the statutory structure of the case.  Indeed, many of the justices had questions on the differences between 28 U.S.C. § 1920, which Kansas says only applies to, inter alia, compensation for expert witnesses in lower courts, and 28 U.S.C. § 1911, which General Six argued is merely a congressional grant of discretion that the Court already has.  This reading was supported both by the fact that in 219 years of the Court's original jurisdiction practice, it never referred to any congressional cost provision as dictating its practice.

This discussion led to the second response from the Court as to General Six's constitutional argument, which is to accept, arguendo, the claim.  However, as Justice Alito questioned, why not continue to follow the Court's tradition in other areas of original jurisdiction and model the Court's procedural rules for original jurisdiction cases on the congressional rules for appellate jurisdiction, thus using 28 U.S.C. § 1851's $40 a day limit as a good guidepost?  General Six appeared to have difficulty answering this question, but eventually Chief Justice Roberts hit upon an answer: because $40 is a terrible limit, a fact with which both sides agreed, the Court should not stick to such an arbitrary number.  As Justice Breyer clarified, it would not matter if the expert witness was Albert Einstein or Steven Spielberg; the Court would still limit fees to $40 a day.  The next question, however, was why the Court's original jurisdiction is sufficiently special so as to deviate from the appellate jurisdiction limit?  General Six answered that relying on the $40 limit would simply be inequitable: for example, the Special Master received almost a million dollars in compensation, but the 22 experts, on whom both sides relied heavily, would only receive thirty thousand dollars.  However, many justices were still troubled by the question, as Justice Scalia put it, "What is magical about original actions?"

Colorado Attorney General Suthers tried to focus on the statutory structure, a plain language reading of which, Colorado argued in its brief, favored the $40 limit.  The justices had three types of responses to this statutory argument.  The first and most pervasive pattern of questioning for General Suthers dealt with the Court's concern over the slippery slope argument, to which the Court was, in the words of Chief Justice Roberts, "particularly sensitive": if Congress can regulate how much money to pay expert witnesses in the Court's original jurisdiction cases, what else can it regulate?  General Suthers had two responses.  The first was that Congress has already regulated the original jurisdiction, for example in 28 U.S.C. §1251, which provides that some of the Court's original jurisdiction is not exclusive to the Court, and if this is such a sensitive area, then why is the Court only dealing with it for the first time in 2008?  Later, General Suthers made his second argument, which was that Section 1920 is a purely procedural matter; however, if Congress had tried to interfere with the Court's ability "to do what courts do as a central matter," for example, make substantive changes to the Court's jurisdiction as in Marbury v. Madison, then the Court could strike that down.  This led to a discussion of what the Court's "inherent power" is "“ i.e., whether it is a default power or something more.  General Suthers argued that it was a default power that disappeared when Congress acted, unless it tried to intrude on a central judicial function.  Nonetheless, at the end of General Suthers's argument, the justices seemed to still be unsatisfied with this slippery slope argument.

The second line of questioning dealt with the statutory language itself.  First, Justice Souter was concerned that Colorado's reading of Section 1920 rendered Section 1911 redundant, as now both covered expert witness fees.  General Suthers, attempting to flatter Justice Souter by calling him Justice Ginsburg ("You're not the first to have done that," responded Justice Souter), replied that if Section 1911 were redundant, then so too were its companion statutes, 28 U.S.C. §§ 1913-1914, covering fees in lower courts, thus proving too much.  The justices tried to sort out exactly what the different statutes covered, with Justice Scalia concerned that in fact Section 1911 meant two different types of fees by referring to "the fees to be charged by its clerk" and "the fees of the clerk."  General Suthers responded to Justice Scalia's lament that "it's a messy, messy bunch of statutes" with a uniformity argument, emphasizing that it is important for the Court to avoid issuing a conflicting rule for its original jurisdiction cases, given that so many of its cases are not exclusive.

The third line of questioning dealt with the equity implications of Colorado's rule.  In Kansas's oral arguments, Justice Ginsburg asked whether Kansas had ever found a previous original jurisdiction case in which the Court departed from the $40 a limit, to which General Six replied that he had not.  Returning to this question with General Suthers, Justice Ginsburg raised concerns that both the Special Master and any witnesses appointed by the Special Master could be compensated "fairly," but if one party calls an expert who renders great service to the Court, that expert only gets $40 a day.  General Suthers responded that while this was in fact unfair, and that Congress should change the limit, this is no more unfair to Kansas than to any other litigant in federal court.  Justice Scalia also replied that in the end, the expert witness does get paid, just not by the side that lost the case (the Special Master had previously determined that Kansas was the substantially prevailing party).

In his rebuttal, General Six argued that the wording of Section 1920 should not dissuade the Court from finding in Kansas's favor: although the wording changed in 1948 to appear to include the Supreme Court, the 1948 revision made no indication that the wording signaled a substantive shift in the statute's scope, unlike other places, where Congress specifically stated it was making a substantive change.  When Justice Ginsburg pointed out that the Constitution in fact uses the term "judge" to refer to both justices and judge, General Six responded that so did "the paper I got on my way in here [that] told me not to refer to any of you as "judges.'"  However, General Six continued, if this was a substantive change, it has gone unnoticed by the Court, every major treatise, and any commentary in 60 years.

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