108 Iowa L. Rev. 175 (2022)
The U.S. Supreme Court is famously the nation’s top appellate court, but Article III also makes the Court a trial court, giving it original jurisdiction over several categories of cases. One of those categories— suits by states against other states—remains exclusive. Thus, when Texas sought to overturn the 2020 presidential election by suing four swing states, it had only one court in which to sue. The Court properly rebuffed Texas’s claim for lack of standing, but the Justices give even meritorious claims by state plaintiffs short shrift. They have made clear that these suits detract from the Court’s appellate role and are better resolved elsewhere, including in the political realm. The Court uses several discretionary doctrines to avoid hearing these claims. Plaintiff states must seek leave even to file suit, which the Court usually denies without explanation; must meet an injury-in-fact test more demanding than that imposed on ordinary federal plaintiffs; and, in many cases, must show that a proposed judgment will not be too harmful for the defendant state to satisfy. The Court implements this discretion aggressively. A plaintiff state may thus be denied a forum even when the prospective defendant state has caused significant, but not significant-enough, injury; a plaintiff state may be denied all relief even if it has proven its case on the merits. No other plaintiff in federal court is required to clear such high hurdles. As many have suggested, the Court’s use of discretion in the context of its exclusive jurisdiction potentially violates Article III and the relevant federal jurisdictional statute. But few have noticed the disconcertingly ad hoc nature of the Court’s discretionary decisions. Even more troubling, no one has seen that these doctrines systematically disadvantage state plaintiffs to the benefit of state defendants, and that these disadvantages fall more heavily on certain groups of states, such as downstream states who seek to sue upstream states over crucial water supplies. The Court has stressed that the states must be treated equally as litigants before it, yet its discretionary approach to interstate disputes treats states unequally. The Court’s discrimination against state plaintiffs may also make political solutions less likely by creating disincentives for negotiation and by undercutting enforcement of agreements. The Court has good reasons for avoiding these cases, however. Instead of suggesting doctrinal change to address this original discrimination, I recommend that Congress give the lower courts concurrent jurisdiction over these disputes. Making the lower courts open to these suits gives the Court a principled reason to decline jurisdiction, provides a more accessible forum for state plaintiffs, and, as a result, restores incentives for the political resolution of at least some state-versus-state disputes.