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Justice Thomas on Mandatory Original Jurisdiction
Michael Ramsey

In yesterday's dissent from denial of cert (actually, denial of a motion for leave to file a bill of complaint) in Arizona v. California, Justice Thomas questions the Court's ability to refuse to hear a case arising under original jurisdiction (in this case, where a state is a party): 

Today the Court denies Arizona leave to file a complaint against California. Although we have discretion to decline review in other kinds of cases, see 28 U. S. C. §§1254(1), 1257(a), we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States.

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” §2, cl. 2 (emphasis added). In this circumstance, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

Our original jurisdiction in suits between two States is also “exclusive.” §1251(a). As I have previously explained, “[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief.” Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.

The Court has provided scant justification for reading “shall” to mean “may.” It has invoked its “increasing duties with the appellate docket,” Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (internal quotation marks omitted), and its “structur[e] . . . as an appellate tribunal,” Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). But the Court has failed to provide any analysis of the Constitution’s text to justify our discretionary approach.

I agree that the text seems to point to mandatory rather than discretionary review (at least for constitutional claims) and that the Court has been pretty lame in explaining why the contrary rule is justified.  (Seriously, the argument is that mandatory review would require it to work too hard?)  So Justice Thomas seems, as is often the case, both reasonable and way out in front of anyone else (except Justice Alito, who concurred with Thomas) on this issue.

On the other hand, does Arizona even have standing to bring the claim?  The question is whether California's application of a tax to Arizona limited-liability corporations that invest in California corporations is constitutional.  Surely the Arizona LLCs can bring the claim on their own behalf?  Do states have standing to bring claims when their citizens are injured?