Friend of Letters Blogatory Ingrid Wuerth has a post at Lawfare asking whether the Supreme Court might exercise its original jurisdiction in a case brought by a US state against Russia on account of election meddling. For non-American readers: the Supreme Court typically takes cases by writ of certiorari to the federal courts of appeals or to the highest court in a state in which a decision could be had in a particular case. The Court has complete discretion whether to grant the writ, and thus has complete control over its certiorari caseload. There is also a small appellate jurisdiction, in which parties have a right to appeal to the Supreme Court and the Court cannot simply refuse to hear the appeal. And there is the Court’s “original jurisdiction:” cases in which a party may bring its claim to the Supreme Court in the first instance, and the Supreme Court acts as the first-instance court. In practice, these days the original jurisdiction mostly involves disputes between states in the western United States about water rights.

The Constitution’s definition of the cases and controversies within the federal judicial power (art. III, § 2) includes “Controversies … between a [US] State … and foreign States, Citizens or Subjects.” And it provides that the Supreme Court’s jurisdiction in cases “in which a State shall be Party” is original jurisdiction, while in most other cases, it has only appellate jurisdiction (art. III, § 3). But Congress has enacted a statute (28 U.S.C. § 1251) providing that the Supreme Court’s non-exclusive original jurisdiction extends to “All actions or proceedings by a State against the citizens of another State or against aliens.” Note that while the Constitution itself mentions original jurisdiction in cases a state brings against a foreign state or against the foreign state’s citizens, the statute mentions original jurisdiction in cases a state brings against a foreign state’s citizens but not against a foreign state itself. The FSIA (28 U.S.C. § 1330) provides that the district courts—the ordinary first-instance courts—have original jurisdiction in cases against foreign states. But of course the district courts do not have exclusive jurisdiction in such cases: a state court can also exercise jurisdiction (assuming the state is not immune from jurisdiction).

So the first question is: does the Supreme Court have any original jurisdiction in cases brought by a state against a foreign state? How do we read the Constitution and the statutes together? Ingrid takes the view that the constitutional original jurisdiction is self-executing, and so the Court could indeed entertain a claim by a US state against Russia. That is probably right.¹There is a very cool view I learned twenty years ago in federal courts suggesting that Congress must vest the original jurisdiction over the “cases” mentioned in the Constitution but not over the “controversies,” but even that view agrees that when Congress does vest jurisdiction over the specified “controversies,” it must vest it in the Supreme Court.

Ingrid then asks the next question: would the Supreme Court agree to hear such a case? For it’s well-established that the Court can refuse to hear an original jurisdiction case if there is another, better forum. She gives what I think is the right answer: the Supreme Court “would have good reason to decline” to hear the case. But she goes on to give some reasons why perhaps the Supreme Court might want to take the case. For example: there is a foreign policy risk involved when a court authorizes a plaintiff to take discovery to determine whether or not an exception to foreign sovereign immunity applies. I think that in practice the Court would be highly uninterested in taking a case like this. Why would it inject itself into a high-profile dispute needlessly when the district courts are better equipped the handle the case? Anyway, I think the particular risks Ingrid has identified are probably not that serious, as the chance that Russia would appear and defend the case seems to me to be, well, low.

I think Ingrid omits maybe the most important practical question: would a US state ever seek to invoke the Supreme Court’s original jurisdiction? What would the state have to gain? It seems to me that for reasons ranging from venue (a state would probably rather litigate in the federal courts in its own territory rather than in Washington) to predictability (you know how a civil action is going to go in a district court, whereas in an original action the Supreme Court appoints a special master to act, in essence, like a magistrate judge, and the procedure may be less familiar than in an ordinary case), to not alienating the Justices, states are unlikely to try such an unusual path.

One point in Ingrid’s piece was puzzling. She points out that a foreign state’s consent would be necessary, citing Monaco v. Mississippi. I’m not sure that I see why this is so. We know from the FSIA generally that while a foreign state may waive its foreign sovereign immunity, it may still be subject to suit without a waiver if one of the other exceptions to FSIA immunity applies. In this sense the foreign sovereign immunity of foreign states in US courts stands on a different footing than the sovereign immunity of the United States or of the US states in US courts.

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  There is a very cool view I learned twenty years ago in federal courts suggesting that Congress must vest the original jurisdiction over the “cases” mentioned in the Constitution but not over the “controversies,” but even that view agrees that when Congress does vest jurisdiction over the specified “controversies,” it must vest it in the Supreme Court.