Article III, Section 2, Clause 2:

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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Article III, Section 2, Clause 2 of the Constitution grants the Supreme Court “original Jurisdiction” over “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” 1 When the Court has original jurisdiction over a case, it means that a party may commence litigation in the Supreme Court in the first instance rather than reaching the high court on appeal from a state court or an inferior federal court.

From the beginning, the Supreme Court has indicated that its original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by Congress.2 In Chisholm v. Georgia, the Court considered an action of assumpsit against the State of Georgia by a citizen of another state.3 Congress in Section 3 of the Judiciary Act of 1789 had granted the Court original jurisdiction in suits between a state and citizens of another state, but had not authorized actions of assumpsit in such cases or prescribed forms of process for the exercise of original jurisdiction.4 The Court sustained its jurisdiction and its power to provide forms of process and rules of procedure in the absence of congressional enactments.5 In 1861, Chief Justice Roger Taney reviewed applicable precedents and stated that, in all cases where the Constitution grants the Supreme Court original jurisdiction, the 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.” 6

Under Supreme Court doctrine and long-standing congressional practice, the Court’s original jurisdiction is not necessarily exclusive. In some cases, Congress has granted the lower federal courts concurrent jurisdiction, meaning that cases subject to original Supreme Court jurisdiction may either be filed directly in the Supreme Court or in one of the lower federal courts. Chief Justice John Marshall appears to have assumed in Marbury v. Madison that the Court had exclusive jurisdiction of cases within its original jurisdiction.7 However, beginning with the Judiciary Act of 1789, Congress gave the inferior federal courts concurrent jurisdiction in some such cases.8 The federal circuit courts sustained the grant of jurisdiction in early cases,9 and the Supreme Court upheld concurrent jurisdiction in the nineteenth century.10 In another case from the late nineteenth century, the Court relied on the first Congress’s interpretation 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.11 Noting that Section 13 of the Judiciary Act referred to “controversies of a civil nature,” Justice Horace 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.” 12

Although Congress may allow the lower federal courts to hear cases subject to Supreme Court original jurisdiction, the legislature can neither expand nor contract the constitutional grant of original jurisdiction to the Court. Thus, in Marbury, Chief Justice Marshall invalidated a provision of Section 13 of the 1789 Act because he interpreted the statute to give the Court power to issue a writ of mandamus in an original proceeding, which the Constitution did not authorize.13 In so holding, the Chief Justice did not defer to the constitutional judgment of the Congress that enacted the 1789 Act.

Although the Supreme Court has held that Congress lacks the power to expand or contract the Court’s original jurisdiction, the Court has assumed significant latitude to interpret the jurisdictional grant itself. In some cases, such as Missouri v. Holland,14 the Court has adopted a liberal construction of its original jurisdiction, but the more usual view is that “our original jurisdiction should be invoked sparingly.” 15 The Court has thus held that original jurisdiction “is limited and manifestly to be sparingly exercised, and should not be expanded by construction.” 16 The Court has emphasized that its exercise of original jurisdiction is not obligatory but discretionary, to be determined on a case-by-case basis on grounds of practical necessity.17 The Court has explained that it will exercise original jurisdiction “only in appropriate cases.” 18 It has further stated that “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.” 19 Although the Court has exercised its original jurisdiction sparingly, where claims are of sufficient “seriousness and dignity” and resolution by the Judiciary is of substantial concern, the Court will hear them.20 In cases subject to concurrent original and appellate jurisdiction, the Supreme Court has discretion to decline to exercise original jurisdiction and instead require that a case first proceed through the lower federal courts.21

Footnotes

1

U.S. Const. art. III, § 2, cl. 2.

2

But, in Section 13 of the Judiciary Act of 1789, 1 Stat. 80, Congress purported to grant the Court original jurisdiction. The statutory conveyance still exists today but does not encompass all cases included in the Constitutional grant of original jurisdiction. 28 U.S.C. § 1251.

3

2 U.S. (2 Dall.) 419 (1793). In an earlier case, the question of jurisdiction was not raised. Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 (1792).

4

1 Stat. 80.

5

The backlash of state sovereignty sentiment resulted in the proposal and ratification of the Eleventh Amendment. The Amendment did not affect the direct flow of original jurisdiction to the Court, although 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.

6

Kentucky v. Dennison, 65 U.S. (24 How.) 66, 98 (1861).

7

Marbury v. Madison, 5 U.S. (1 Cr.) 137, 174 (1803).

8

In Section 3 of the 1789 Act. The present division is in 28 U.S.C. § 1251.

9

United States v. Ravara, 2 U.S. (2 Dall.) 297 (C.C. Pa. 1793).

10

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).

11

Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

12

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).

13

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. Other cases have since followed this exclusive interpretation. 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 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 the Court rejected the application, the Court did not point out that it was being asked to assume original jurisdiction in violation of Marbury v. Madison.

14

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).

15

Utah v. United States, 394 U.S. 89, 95 (1968).

16

California v. S. Pac. Co., 157 U.S. 229, 261 (1895). The Court has frequently used the word “sparingly” in this context. 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).

17

Texas v. New Mexico, 462 U.S. 554, 570 (1983).

18

Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972). In this case, and in Washington v. Gen. Motors Corp., 406 U.S. 109 (1972), and Ohio v. Wyandotte Chems. Corp., 401 U.S. 493 (1971), the Court declined to permit adjudication of environmental pollution cases within its original jurisdiction because the nature of the cases required the resolution of complex, novel, and technical factual questions not suitable for resolution by the Supreme Court in the first instance, but which could be brought in the lower federal courts. The Court has not barred all such cases, however. 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).

19

Id. at 93–94.

20

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). Cf. Florida v. Georgia, 138 S. Ct. 2502, 2509 (2018) ( “'This Court has recognized for more than a century its inherent authority, as part of the Constitution’s grant of original jurisdiction, to equitably apportion interstate streams between States.’ But we have long noted our ‘preference’ that States ‘settle their controversies by mutual accommodation and agreement.’” (quoting Kansas v. Nebraska, 135 S. Ct. 1042, 1052 (2015); Arizona v. California, 373 U.S. 546, 564 (1963))).

21

See, e.g., Wyandotte Chems. Corp., 401 U.S. 493; Georgia v. Penn. R.R., 324 U.S. 439 (1945); Massachusetts v. Missouri, 308 U.S. 1 (1939).