Does the Supreme Court control the outcome of broad political and social questions? Not at all. The Constitution vests the high court with mandatory original jurisdiction over only four types cases, which tend to be pretty uncommon. But these very cases seem to be the only ones the Supreme Court declines to take.
There’s a dirty little secret about our political system that few realize. Congress has plenary power over the entirety of what is known as the Supreme Court’s “appellate jurisdiction.” That means that Congress can regulate or exclude any type of case from the Supreme Court’s reach through the appeals process, except for one of the four types where the Constitution vests it with “original jurisdiction.” One of those cases just came before the Supreme Court, and on Monday, the court finally showed humility at the wrong time and declined to take the appeal.
Art. III, § 2, cl. 1 of the Constitution vests the high court with original jurisdiction over “all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states.”
Well, Arizona has a complaint that California is taxing Arizona citizens who have nebulous ties to the Golden State and thereby draining Arizona’s government revenue. California assesses an $800 “doing business” tax against Arizona businesses and banks that conduct no real business in California, other than a passive investment in a California company. Since the “doing business” taxes are deductible, Arizona loses an estimated $484,000 in tax revenue every year. According to Arizona’s attorney general, Mark Brnovich, 13,300 Arizona-based LLCs pay about $10.6 million a year in California taxes without having any presence in California.
This case obviously opens up a nasty can of worms related to interstate taxation and the concept of taxation without representation. As the National Taxpayers Union warned in an amicus brief: “California’s cross-border seizure of funds from the bank accounts of Arizona residents amounts to casus belli in the classic sense of requiring collective self-defense. But unlike conventional cross-border raids that rely on physical mobilization, technological advances allow California to reach into Arizona bank accounts without physically traveling outside its own borders. This precedent, if allowed to stand, would allow any state with revenue aspirations to reach passive investors in every other state by using multistate banks as conduits for backdoor extractions.”
In other words, this is exactly why we have a federal government and more specifically why the Constitution mandated that the Supreme Court mediate these disputes.
Instead, the Supreme Court dismissed Arizona’s motion yesterday without offering any explanation. Now Arizona has no recourse but to sue in California state courts, which our Founders sought to avoid, for obvious reasons.
Justice Thomas, joined only by Justice Alito, tore into his colleagues for dismissing this case.
The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” §2, cl. 2 (emphasis added). In this circumstance, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court). Our original jurisdiction in suits between two States is also “exclusive.” §1251(a). As I have previously explained, “[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief.” Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.
Well, indeed, the modus operandi of the federal courts these days is to “usurp what is not given” to them, while declining to exercise “the jurisdiction which is given.” It’s truly ironic to watch the federal courts insert themselves into all issues of internal order within a state where they doesn’t belong, be it life, marriage, election law, or internal economic issues. We have federal courts hearing cases that statute explicitly precludes them from hearing. We have federal courts abusing the rules of standing. And we have federal courts issuing injunctions outside the parties properly before the court.
Yet there is this erroneous perception that the federal courts reign supreme over the other branches and can usurp their power with impunity, when in fact the opposite is true. There can be no greater authority on this matter than Chief Justice Oliver Ellsworth, who served as the first Senate Judiciary Committee chairman and is often called “the father of the national judiciary.” Writing an opinion in a 1796 case, Ellsworth authoritatively asserted, “If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it.”
As Clarence Thomas wrote in a 2018 case, “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”
For example, Congress stripped the federal courts of all power to block deportations under “expedited removal,” but the courts are issuing injunctions anyway. There is no apparent will on the part of the Supreme Court to remove its inferior courts from this realm.
Yet when it comes to an interstate dispute, the one area where the high court must insert itself, plaintiffs are told to go to the other state’s court for relief because the justices have washed their hands of the case. Truly a system upside down.
Perhaps, if the Supreme Court doesn’t want to use its power where the Constitution requires it, Congress should negative its power in all the cases where that authority exists solely at the discretion of Congress. (For more from the author of “Supreme Court Declines to Intervene… Where It Actually Belongs” please click HERE)
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