THE ORIGINAL JURISDICTION OF THE SUPREME COURT

From the beginning, the Supreme Court has assumed that its original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by Congress.1202 In Chisholm v. Georgia,1203 the Court entertained an action of assumpsit against Georgia by a citizen of another state. Congress in § 3 of the Judiciary Act of 17891204 purported to invest the Court with original jurisdiction in suits between a state and citizens of another state, but it did not authorize actions of assumpsit in such cases nor did it prescribe forms of process for the exercise of original jurisdiction. Over the dissent of Justice Iredell, the Court, in opinions by Chief Justice Jay and Justices Blair, Wilson, and Cushing, sustained its jurisdiction and its power to provide forms of process and rules of procedure in the absence of congressional enactments. The backlash of state sovereignty sentiment resulted in the proposal and ratification of the Eleventh Amendment, which did not, however, affect the direct flow of original jurisdiction to the Court, although those cases to which states were parties were now limited to states as party plaintiffs, to two or more states disputing, or to United States suits against states.1205

By 1861, Chief Justice Taney could confidently enunciate, after review of the precedents, that in all cases where original jurisdiction is given by the Constitution, the Supreme Court has authority “to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice.”1206

Although Chief Justice Marshall apparently assumed the Court had exclusive jurisdiction of cases within its original jurisdiction,1207 Congress from 1789 on gave the inferior federal courts concurrent jurisdiction in some classes of such cases.1208 Sustained in the early years on circuit,1209 this concurrent jurisdiction was finally approved by the Court itself.1210 The Court has also relied on the first Congress’s interpretation of the meaning of Article III in declining original jurisdiction of an action by a state to enforce a judgment for a pecuniary penalty awarded by one of its own courts.1211 Noting that § 13 of the Judiciary Act had referred to “controversies of a civil nature,” Justice Gray declared that it “was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.”1212

However, another clause of § 13 of the Judiciary Act of 1789 was not accorded the same presumption by Chief Justice Marshall, who, interpreting it to give the Court power to issue a writ of mandamus on an original proceeding, declared that, as Congress could not restrict the original jurisdiction, neither could it enlarge it, and he pronounced the clause void.1213 Although the Chief Justice’s interpretation of the meaning of the clause may be questioned, no one has questioned the constitutional principle it proclaimed. Although the rule deprives Congress of power to expand or contract the jurisdiction, it allows a considerable latitude of interpretation to the Court itself. In some cases, such as Missouri v. Holland,1214 the Court has manifested a tendency toward a liberal construction of its original jurisdiction, but the more usual view is that “our original jurisdiction should be invoked sparingly.”1215 Original jurisdiction “is limited and manifestly to be sparingly exercised, and should not be expanded by construction.”1216 Exercise of its original jurisdiction is not obligatory on the Court but discretionary, to be determined on a case-by-case basis on grounds of practical necessity.1217 It is to be honored “only in appropriate cases. And the question of what is appropriate concerns of course the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer.”1218 But where claims are of sufficient “seriousness and dignity,” in which resolution by the judiciary is of substantial concern, the Court will hear them.1219

Footnotes

1202
But, in § 13 of the Judiciary Act of 1789, 1 Stat. 80, Congress did so purport to convey the jurisdiction and the statutory conveyance exists today. 28 U.S.C. § 1251. It does not, however, exhaust the listing of the Constitution. [Back to text]
1203
2 U.S. (2 Dall.) 419 (1793). In an earlier case, the point of jurisdiction was not raised. Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 (1792). [Back to text]
1204
1 Stat. 80. [Back to text]
1205
On the Eleventh Amendment, see infra. [Back to text]
1206
Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861). [Back to text]
1207
Marbury v. Madison, 5 U.S. (1 Cr.) 137, 174 (1803). [Back to text]
1208
In § 3 of the 1789 Act. The present division is in 28 U.S.C. § 1251. [Back to text]
1209
United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C.Pa. 1793). [Back to text]
1210
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884). Such suits could be brought and maintained in state courts as well. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930). [Back to text]
1211
Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). [Back to text]
1212
127 U.S. at 297. See also the dictum in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 398–99 (1821); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 431–32 (1793). [Back to text]
1213
Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). The Chief Justice declared that “a negative or exclusive sense” had to be given to the affirmative enunciation of the cases to which original jurisdiction extends. Id. at 174. This exclusive interpretation has been since followed. Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807); New Jersey v. New York, 30 U.S. (5 Pet.) 284 (1831); Ex parte Barry, 43 U.S. (2 How.) 65 (1844); Ex parte Vallandigham, 68 U.S. (1 Wall.) 243, 252 (1864); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 98 (1869). In the curious case of Ex parte Levitt, 302 U.S. 633 (1937), the Court was asked to unseat Justice Black on the ground that his appointment violated Article I. § 6, cl. 2. Although it rejected petitioner’s application, the Court did not point out that it was being asked to assume original jurisdiction in violation of Marbury v. Madison. [Back to text]
1214
252 U.S. 416 (1920). See also South Carolina v. Katzenbach, 383 U.S. 301 (1966), and Oregon v. Mitchell, 400 U.S. 112 (1970). [Back to text]
1215
Utah v. United States, 394 U.S. 89, 95 (1968). [Back to text]
1216
California v. Southern Pacific Co., 157 U.S. 229, 261 (1895). Indeed, the use of the word “sparingly” in this context is all but ubiquitous. E.g., Wyoming v. Oklahoma, 502 U.S. 437, 450 (1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981); United States v. Nevada, 412 U.S. 534, 538 (1973). [Back to text]
1217
Texas v. New Mexico, 462 U.S. 554, 570 (1983). [Back to text]
1218
Illinois v. City of Milwaukee, 406 U.S. 91, 93–94 (1972). In this case, and in Washington v. General Motors Corp., 406 U.S. 109 (1972), and Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court declined to permit adjudication of environmental pollution cases manifestly within its original jurisdiction because the nature of the cases required the resolution of complex, novel, and technical factual questions not suitable for resolution at the Court’s level as a matter of initial decision, but which could be brought in the lower federal courts. Not all such cases, however, were barred. Vermont v. New York, 406 U.S. 186 (1972) (granting leave to file complaint). In other instances, notably involving “political questions,” cf. Massachusetts v. Mellon, 262 U.S. 447 (1923), the Court has simply refused permission for parties to file bills of complaint without hearing them on the issue or producing an opinion. E.g., Massachusetts v. Laird, 400 U.S. 886 (1970) (constitutionality of United States action in Indochina); Delaware v. New York, 385 U.S. 895 (1966) (constitutionality of electoral college under one-man, one-vote rule). [Back to text]
1219
Wyoming v. Oklahoma, 502 U.S. 437, 451 (1982). The principles are the same whether the Court’s jurisdiction is exclusive or concurrent. Texas v. New Mexico, 462 U.S. 554 (1983); California v. West Virginia, 454 U.S. 1027 (1981); Arizona v. New Mexico, 425 U.S. 794 (1976). [Back to text]