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Odd Clauses Watch: How Do the States Stack Up In the First-Ever (We Think) Original Jurisdiction Standings?

Jay Wexler is the author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. Wexler is a professor at the Boston University School of Law; prior to teaching he worked as a clerk to Justice Ruth Bader Ginsburg at the U.S. Supreme Court, and then as a lawyer in the Office of Legal Council at the Department of Justice. He has published nearly twenty academic articles, essays, and reviews, as well as nearly three dozen short stories and humor pieces, in places like The Boston GlobeSpyMental Floss and McSweeney's. This post originally appeared on his blog.

WEXLER-OddClausesOne of my favorite constitutional provisions that I talk about in my book The Odd Clauses is the so-called Original Jurisdiction Clause of Article III, which says that “In all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction.” Usually (by which I mean almost always, maybe 99% of the time), the Supreme Court hears cases under its appellate jurisdiction, which means that it hears a case that has already been heard by lower courts, and its role consists of reviewing the decisions of those courts. But when the Supreme Court exercises its original jurisdiction, it is the first and only court to hear the case. This is very strange, because the Supreme Court is not set up, as is a trial court, to hear evidence and witnesses and make factual determinations and the like; usually all it does is decide pure legal issues.

Although the Constitution provides for a few different kinds of cases that the Court can hear in its original jurisdiction, Congress has provided by statute that almost all of these kinds of cases can also be heard by the federal trial courts. As a result, even almost all of the cases that would fall under the Court’s original jurisdiction end up being heard in the first instance  by a lower court. As it turns out, then, pretty much the only cases that the Supreme Court ever considers in its original jurisdiction are cases in which one state sues another state (or states). For these state vs. state cases, the Supreme Court is the only court that has the objectivity necessary to provide for a fair hearing to both states. If Nebraska were to sue Iowa, for instance, over where their border should be drawn, where else would it sue? It wouldn’t want to sue in Iowa. And Iowa wouldn’t want it to be able to sue in Nebraska. The framers understood this problem, and so they gave the Supreme Court original jurisdiction over these difficult cases to prevent interstate conflict and even war, which at least at the time of the founding, was by no means an impossibility.

Every year the Supreme Court hears somewhere between zero and three of these cases; the cases don’t, in other words, make up much of the Court’s docket. The Court has yet to list an original jurisdiction case for this term yet, for instance. Last term the Court decided one case, a water rights dispute between Montana and Wyoming. The most notable thing about the opinions in that case was Justice Scalia’s attempt to rename the people of Wyoming, a stunt that led me to open up a poll asking readers to vote on their preferred moniker for Wyoming citizens. (The winner was “Wyomans.”)

Most original jurisdiction cases involve some type of border or water rights dispute. Some involve tax issues of some sort of another. A few involve interstate pollution issues, like when Missouri sued Illinois at the turn of the 20th century, claiming that Illinois’ decision to reverse the flow of the Chicago River had spread disease downstream to St. Louis (Missouri lost). The most famous recent original jurisdiction case involved New York and New Jersey arguing over who owns Ellis Island. The Court, much to the dismay of many New Yorkers, held for New Jersey.

Although the Supreme Court could, if it wished, hold actual trials in these cases, in which presumably the justices would decide as a group on the thousand nitty gritty issues of evidence and whatnot that come up during your average trial, it almost never does this (I think maybe it’s done it three times in its history). Instead it appoints somebody called a “Special Master” to sort through the evidence, hold a trial, and issue a report that makes recommendations about what the Court should do. The Court then reviews those recommendations and decides whether to adopt them. Special Masters are generally chosen from the elite bar. I, for example, am unlikely to be appointed as a Special Master.  :(

In my book, I explain that I love these State vs. State cases in part because their names (Oklahoma v. Texas, Arizona v. California, etc.) sound like college football games. I also mention that while writing the book I had considered analyzing all these cases and reporting on the win-loss records of all the states, to see which states have fared the best and the worst in these interstate disputes. Also in the book I mention that I did not have time to actually do this because I have a “family” and because my editor was a real stickler with her deadlines, etc. etc.

I am happy now to announce, however, that over this past summer, my crack team and I (by which I mean my very smart and conscientious research assistant Dave Hatton, working under my haphazard and oft-distracted supervision) completed this important, shall I say pathbreaking research (yes, I shall), by looking at every original jurisdiction state versus state case decided since 1900 (we had to leave some further research to those who follow in my scholarly footsteps) and coming up with the win-loss records of each state. Now, I should make a couple of disclaimers before reporting on the data. For one thing, some of these cases are hard to call, and reasonable minds may differ as to who won and who lost. We simply made the best judgment we could. For another thing, I explicitly told Dave that his other tasks were more important and that he shouldn’t knock himself out analyzing the cases, and that if he missed something or otherwise got sick of trying to get to the bottom of something, he should just make a decision and get on with it because, let’s face it, none of this makes any difference.

GoldyAnyway, without any further ado, I present the following two lists–the first is an alphabetical list of all the states with their win-loss records, and the second is a list of all states judged to have participated in five or more cases, in order of their winning percentages. As you’ll see, the big winners here are Minnesota and Michigan. The states that have fared the worst are Tennessee and Louisiana. Here is the first list:

Alabama 1-2
Alaska no cases
Arizona 2-6
Arkansas 1-5
California 6-3
Colorado 8-9
Connecticut 0-1
Delaware 3-0
Florida 1-3
Georgia 0-1
Hawaii no cases
Idaho 2-1
Illinois 3-6
Indiana 1-1
Iowa 2-0
Kansas 4-4
Kentucky 2-4
Louisiana 2-7
Maine 0-1
Maryland 2-1
Massachusetts 3-2
Michigan 6-1
Minnesota 5-0
Mississippi 3-5
Missouri 2-4
Montana 1-2
Nebraska 4-2
Nevada 3-2
New Hampshire 1-1
New Jersey 3-3
New Mexico 7-3
New York 7-4
North Carolina 3-1
North Dakota 1-1
Ohio 4-1
Oklahoma 3-4
Oregon 1-1
Pennsylvania 5-3
Rhode Island 1-0
South Carolina 1-1
South Dakota 1-0
Tennessee 0-5
Texas 6-8
Utah 3-0
Vermont 1-2
Virginia 4-4
Washington 1-1
West Virgina 3-5
Wisconsin 5-2
Wyoming 7-5

And here is the second list:

Minnesota 5-0 (winning percentage 100%)
Michigan 6-1 (86%)
Ohio 4-1 (80%)
Wisconsin 5-2 (71%)
New Mexico 7-3 (70%)
California 6-3 (67%)
Nebraska 6-3 (67%)
New York 7-4 (64%)
Pennsylvania 5-3 (63%)
Massachusetts 3-2 (60%)
Nevada 3-2 (60%)
Wyoming 7-5 (58%)
Kansas 4-4 (50%)
New Jersey 3-3 (50%)
Virginia 4-4 (50%)
Colorado 8-9 (47%)
Oklahoma 3-4 (43%)
Texas 6-8 (43%)
Mississippi 3-5 (38%)
Washington 3-5 (38%)
Illinois 3-6 (33%)
Kentucky 2-4 (33%)
Missouri 2-4 (33%)
Arizona 2-6 (25%)
Arkansas 1-5 (17%)
Louisiana 2-7 (22%)
Tennessee 0-5 (0%)

There you have it, folks. The first ever, as far as I know, original jurisdiction standings. Of course, there’s a lot more to be done with this data, for those so inclined. Like, maybe breaking up the analysis into how well states do when they are plaintiffs as opposed to defendants, for example. Or devising a board game called State versus State where the goal is to successfully sue as many states as possible to increase your borders, access the most water, and get the most tax revenues. In any event, I’m happy to take questions on how I got these numbers if anyone cares, and I’m definitely happy to adjust the numbers if it turns out I mischaracterized a decision or missed a decision or whatever. Until then, enjoy.