There are many unusual cases that find their way to the Supreme Court, but none more than the docket of original cases.
Start with the names. Original cases, so titled because they originate directly in the Supreme Court, have names like Virginia v. Maryland, a 2003 decision involving rights to the Potomac River; New Jersey v. New York, a 1999 dispute over Ellis Island; or New Hampshire v. Maine, a 1976 ruling on the boundary between the two states for lobster fishing rights. The most recent original case, to be argued on Tuesday, is Kansas v. Nebraska and Colorado, about which more later.
Most law students first encounter the concept of original jurisdiction in their constitutional law class when studying Marbury v. Madison. Recall that William Marbury sued because President Thomas Jefferson and Secretary of State James Madison denied him a commission for a judgeship to which he was appointed by President John Adams and confirmed by the Senate. Marbury filed suit directly in the Supreme Court, invoking the Court’s original jurisdiction. In 1803, the Court ruled that Marbury’s lawsuit was not a matter for original jurisdiction and that if the Judiciary Act of 1789 expanded the Court’s authority, it was an unconstitutional exercise of congressional power. So the most famous original case ever was actually not an original case at all.
So what is an original case? The term literally means a lawsuit that is filed directly in the Supreme Court with no prior trial or appeal in lower courts. Article III of the U.S. Constitution establishes the Supreme Court in its first paragraph and then, in its second section, directs that, “[i]n 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.” Although the decision in Marbury would seem to limit Congress’s ability to alter the Supreme Court’s original jurisdiction, Congress has passed laws making some cases, like those involving ambassadors, matters of concurrent jurisdiction, meaning the lawsuit could be filed either in a district court or in the Supreme Court.
As a result, the vast majority of original cases are those between two or more states, and they often involve disputes over boundaries or water rights. Not all original cases take this form. Original jurisdiction also includes a lawsuit by a state against a citizen of another state, an option that has been used to file some very significant cases directly in the Supreme Court. South Carolina v. Katzenbach in 1966 was a case in point, with the state challenging the constitutionality of the Voting Rights Act by suing U.S. Attorney General Nicholas Katzenbach, a citizen of another state.
What happens when an original case is filed? The Court must first determine whether it will accept original jurisdiction over the case, usually based on review of a motion but occasionally based on oral argument. The Court may agree to hear the dispute and order oral argument if it is primarily a struggle over legal questions. If the Court decides to tackle a case that involves disputed facts, as often happens since there has been no trial, the Court will typically appoint a special master to gather evidence and report back to the Justices.
On at least one unique occasion, according to the official reports of Supreme Court decisions and noted by others who have studied the original cases, the Justices apparently conducted a jury trial and did not use the services of a special master. The syllabus to Georgia v. Brailsford, Powell & Hopton, decided in 1794, indicates that there was “a trial at the bar of the Court by a jury.”
More commonly, there is a public order accepting jurisdiction and appointing a special master, but after that the case may disappear from the radar for months, even years. Special masters are called upon to weigh the facts and legal arguments. This always involves sifting through briefs and pleadings by the parties, but it may also involve hearings. Those hearings may be limited to arguments by the lawyers, but they may also include testimony from witnesses and the amassing of thousands of pages of transcript and record. The procedures followed may be decided by the special masters in each case, and the Court has held that the Federal Rules of Evidence are only guidance in original cases.
In typical original cases today, the special master files a report with the Court. The lawyers on both sides may then file briefs challenging the special master’s findings and conclusions, and the Court will decide whether to accept the views of the special master or to hear arguments over the disagreements about the special master’s report. And finally, the Justices will decide the case.
Sometimes it is not so simple. Consider Kansas v. Nebraska and Colorado, the current original case actively on the Court’s docket. In one form or another, the case has been on the Court’s docket since 1999 and has spawned four reports by two different special masters.
The dispute involves the waters of the Republican River, which touches parts of Colorado, Kansas, and Nebraska. In 1943, Congress approved an agreement among the three states allocating water from the river. In 1999, Kansas filed an original suit against Nebraska complaining that the state was exceeding its allotment of water through groundwater pumping that increased its share. The first special master was retired Maine Supreme Court Chief Justice Vincent McKusick, who had handled some other original cases before this one. After holding hearings, gathering evidence, and receiving briefs, in 2003 McKusick issued a 200-page final report and attached a 1081-page, five-volume settlement agreement. The Court accepted his report and ordered his fees paid by the parties.
Concerns began to arise by Kansas in 2006 about the workings of the settlement, and in 2010, Kansas filed a new challenge that the Supreme Court regarded as a reopening of the earlier dispute. In 2011, the Justices appointed a new special master to hear Kansas’s complaint that both the earlier compact and the more recent settlement were being violated. The new special master was William Kayatta, a lawyer in Portland, Maine, who in 2013 became a judge on the U.S. Court of Appeals for the First Circuit but continued to handle the original case. Judge Kayatta filed his report last November, finding that Nebraska took more than its share of the water and ordering Nebraska to pay $5.5 million to Kansas. Nebraska disagrees, and the case is set for argument tomorrow.
For the lawyers who square off in the oral argument, the stakes will be of enormous importance to their respective states. For the Justices, it will come down to whether to adopt the approach of the special master or engage in some “original” thinking.