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Why Justices Thomas and Alito are Correct About Mandatory SCOTUS Jurisdiction
Andrew Hyman

Imagine that one state sues another.  In such a case, the question arises whether the Supreme Court must exercise its original jurisdiction if requested to do so.  
In February of this year, in the case of Arizona v. California, Justice Thomas joined by Justice Alito opined that “we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States.”  They made the same point in a 2016 case, Nebraska v. Colorado, saying: "Congress has long provided by statute that this Court 'shall have original and exclusive jurisdiction of all controversies between two or more States.' 28 U. S. C. §1251(a)(emphasis added)."  In both of the cases mentioned, SCOTUS denied leave to file the bill of complaint, without any explanation, and so the only opinion was Justice Thomas's dissent from the denial, joined by Justice Alito. 
Ever since 1976, SCOTUS has interpreted the quoted text of 28 U.S.C. §1251(a) not to mean that the Supreme Court must accept and try every case between two states, but rather to mean that if SCOTUS does not take the case then no other federal court can try the case either.  That 1976 case was Arizona v. New Mexico, and Justice Stevens dissented, saying (subject to an exception not important here), "I do not believe the comments which the Court has previously made about its nonexclusive original jurisdiction adequately support an order denying a State leave to file a complaint against another State."  Stevens took a similar position in the 1981 case of California v. West Virginia: "The fact that two sovereign States have been unable to resolve this matter without adding to our burdens does not speak well for the statesmanship of either party but does not, in my opinion, justify our refusal to exercise our exclusive jurisdiction under 28 U.S.C . 1251(a)."  Justice White took a similar position in the 1988 case of Louisiana v. Mississippi.
This controversy has not escaped the attention of published scholars.  For example, in a 1982 BYU Law Review comment, Julie Vick Stevenson wrote (at page 740): 
[I]t is clearly inappropriate to apply the 1251(b) discretionary test to section 1251(a)....The majority in Arizona v. New Mexico....based its decision on faulty analysis, applying the 1251(b) discretionary test to a 1251(a) situation....This course of action not only ignores the statutory distinction in section 1251, but also defeats the traditional purposes of the article III grant of original jurisdiction to the Supreme Court.
As Julie Vick Stevenson urged, let's consider the full text of 28 U.S.C. 1251:
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1)All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3)ll actions or proceedings by a State against the citizens of another State or against aliens.
It is a very strange reading of this statute that attributes to Congress the intention to completely prohibit U.S. District Courts from trying a case between two states, merely because the U.S. Supreme Court won't be bothered to try the case.  A vastly more plausible interpretation is, as Julie Vick Stevenson urged, that 28 USC 1251(a) entitles two states to appear in the Supreme Court for trial, whereas 28 USC 1251(b) gives the Supreme Court discretion whether to operate as a trial court. This distinction in 28 USC 1251 dates all the way back to the Judiciary Act of 1789:
Sec. 13.  And be it further enacted, that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a State and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.
Just like when you consider 28 USC 1251(a) in context of the whole section, this whole section of the Judiciary Act makes clear that it is not prohibiting the lower federal courts from trying any of the cases described just because the judges of the Supreme Court do not want SCOTUS to do it.  Such was the consistent understanding and practice from 1789 to 1976, and I am not aware that anyone has ever suggested any reason why the framers of the Judiciary Act would possibly have wanted any case between states to be tried only in state court and not in federal court, at the mere discretion of SCOTUS.