Opinion Recap: Kansas v. Colorado

Stanford student David Schwartz discusses Monday’s decision in No. 105, Original.

In oral argument, Justice Alito asked the Kansas Attorney General a tough question that the Attorney General could not, to the Court’s satisfaction, answer: does the Court have the discretion in its original jurisdiction to mimic federal law governing appellate jurisdiction?  Or, as Justice Scalia put it, “what is magical about original actions?”  The answer, according to a unanimous Court, is that there is no magic in original actions, at least with respect to expert witnesses’ attendance fee limits.

After laying out the dispute’s factual background and outlining each state’s basic arguments, the Court – in an opinion by Justice Alito – proceeded to sidestep nearly all of them, including the entirety of both sides’ statutory and constitutional arguments.  Instead, it assumed for the sake of argument that Kansas was correct in arguing that the Court has the discretion to determine the fees for expert witnesses in original actions. 

However, it then accepted Colorado’s policy argument that uniformity between original and appellate actions is desirable.  Though the fee limit itself is a dubious choice, there was “no good reason” to differentiate between original and appellate actions for the fee limit.  Both types of cases can be equally complex, and both can require heavy dependence on expert witnesses.  Thus, the Court overruled Kansas’s exception to the Special Master’s report and held that the “best approach” is a uniform rule across original and appellate actions on expert witness attendance fees, as governed by 18 U.S.C. § 1281(b).

Chief Justice Roberts, joined by Justice Souter, offered a brief concurrence.  Reflecting the Chief Justice’s observation in oral arguments that this is a “particularly sensitive” area of law, Chief Justice Roberts only joined the Court’s opinion in full because it “expressly and carefully” made clear that the uniform rule does not, in any way, infringe the Court’s original jurisdiction authority to decide the issue on its own.  While the Court made a reasonable choice in adopting the uniform rule, the Chief Justice ended his concurrence by declaring that, “[T]he choice is ours.”