Original jurisdiction of the Supreme Court

Mon Mar 29 15:11:25 PDT 2010

Thanks for the responses.

It just seemed odd to me that, if in fact, original jurisdiction is
potentially available (at the discretion of the Court), that no State
would at least try to take the most direct path to the Supreme Court.
If the States win in the court of appeals, that's where the case is
bound to go; and if they lose in the lower courts, that's where they are
going to want to go.   

And while it's true that there are no immediate effective dates for the
parts they are challenging (and even assuming severability), I believe
they are challenging the formation of the exchanges and expanded
Medicaid coverage, and those do not seem to be things that can come into
existence overnight.  And I didn't think there are any facts at issue
here. 

________________________________

From: Janet Alexander [mailto:jca at stanford.edu] 
Sent: Monday, March 29, 2010 5:54 PM
To: Edward A Hartnett; Galanter, Seth M.; conlawprof at lists.ucla.edu
Subject: RE: Original jurisdiction of the Supreme Court

In SC v. Katzenbach the Court noted that SC wanted to obtain a
definitive ruling on the Act, signed into law in August 1965, before its
June 1966 primaries, and that there were no issues of fact. Thus there
were important reasons for hearing the case directly and deciding
expeditiously.

Here there is no looming deadline (much of the Act, including provisions
that are at the heart of the suit, won't go into effect immediately) and
there are many issues of fact. 

Oregon v. Mitchell also involved the validity of elections and thus
there was time pressure (primaries were not as imminent as in Katzenbach
but would have taken place before a case filed in the district court
could get through USSC review, and the act purported to cover state and
local elections as well). The opinion announcing the judgments of the
Court does not discuss jurisdiction at all, or the presence of
controverted facts. The Court may have felt used to taking original
jurisdiction of suits by States challenging federal voting rights laws. 

        Janet Alexander

At 01:12 PM 3/29/2010, Edward A Hartnett wrote:

	Content-Language: en-US
	Content-Type: multipart/alternative;

boundary="_000_FEECEDA4FAE65A46AD36DB382AEEB08364CE987577E2K7CCRshuedu_"

	Such a suit would have to be based on diversity of citizenship.
See Stern & Gressman section 10.5.   

	Assuming that Sebelius is a citizen of Kansas, Geithner a
citizen of NY, and Solis a citizen of California, there does appear to
be diversity jurisdiction in the Supreme Court.  So it would appear that
the complaint as filed in the Northern District of Florida is within the
Supreme Court's original jurisdiction. 

	Current doctrine requires complete diversity in SCOTUS original
actions, but see Stern & Gressman section 10.5 (suggesting that this
limitation might be "recipe for reconsideration"), so perhaps the
plaintiff states are hoping that Kansas, NY, or California might join
the litigation.  Or perhaps my assumption about the citizenship of the
defendants is wrong.

	And of course, the SCOTUS has for decades viewed itself as
empowered to decline to exercise its original jurisdiction.

	Edward A. Hartnett
	Richard J. Hughes Professor 
	     for Constitutional and Public Law and Service
	edward.hartnett at shu.edu
	Phone: 973-642-8842
	Fax:  973-642-8546
	SSRN author page: http://ssrn.com/author=253335 

	From: conlawprof-bounces at lists.ucla.edu [
mailto:conlawprof-bounces at lists.ucla.edu
<mailto:conlawprof-bounces at lists.ucla.edu> ] On Behalf Of Galanter, Seth
M.
	Sent: Monday, March 29, 2010 3:47 PM
	To: conlawprof at lists.ucla.edu
	Subject: Original jurisdiction of the Supreme Court

	Forgive me if this was covered in the tsunami of earlier emails,
but is there any legal reason why the States could not have sought leave
to file their suits challenging the constitutionality of the new health
reform law in the Supreme Court under the Court's original jurisdiction,
as the States did in South Carolina v. Katzenbach (1966), and Oregon v.
Mitchell (1970)?

	Seth Galanter 
	Of Counsel 
	Morrison & Foerster LLP 
	2000 Pennsylvania Avenue, NW 
	Washington DC  20006 
	(202) 887-6947 (office) 

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