Why Wasn’t United States v. Arizona Filed in the Supreme Court from the Outset?

[UPDATE: In writing this, I missed Cohens v. Virginia (1821). Under Chief Justice Marshall’s constitutional interpretation in that case, the Court does not have original jurisdiction over United States v. Arizona, but only has appellate jurisdiction. For more on that, please see this post.]

Several readers asked me why United States v. Arizona — the case in which the U.S. is challenging the constitutionality of Arizona’s law dealing with illegal immigrants — hasn’t been filed from the outset before the United States Supreme Court. Article III, section 2 of the Constitution provides, in relevant part,

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to 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;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.

In U.S. v. Arizona, “a State [is] Party,” so why doesn’t “the supreme Court … have original Jurisdiction” (without regard to any “Regulations as the Congess shall make,” since that latter clause is applicable only to “the other Cases before mentioned”)?

Unfortunately, I am not an expert on the law of federal jurisdiction, so I can’t speak to this with great confidence. But with some help from cobloggers, and from my UCLA colleague Prof. Jonathan Varat, here’s what seems to be the answer — I’d love to hear any corrections or elaborations of this from readers who know more about federal jurisdiction law than I do.

1. A federal statute, 28 U.S.C. § 1251, provides that

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

(b) The Supreme Court shall have original but not exclusive jurisdiction of:

(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;

(2) All controversies between the United States and a State;

(3) All actions or proceedings by a State against the citizens of another State or against aliens.

In principle, this means that the Supreme Court could be asked to hear the case (since it does have original jurisdiction), but might well decline (since its jurisdiction is not exclusive). See United States v. Nevada (1973) for an example of an opinion declining to exercise such jurisdiction. (“We seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim.”)

2. The Judiciary Act of 1789 similarly provided, in section 13, that some of the cases as to which the Supreme Court has constitutional original jurisdiction — there, certain (though not all) cases involving states, as well as certain cases involving ambassadors and consuls — could also be heard in lower courts.

3. In United States v. Ravara (1793), a 3-judge circuit court held — by a 2-1 vote, with Justice Wilson and Judge Peters in the majority, and Justice Iredell in the dissent — that

[A]lthough the Constitution vests in the Supreme Court an original jurisdiction, in cases like the present [which involved the Genoese consul], it does not preclude the Legislature from exercising the power of vesting a concurrent jurisdiction, in such inferior Courts, as might by law be established[.]

4. Based on this, the Supreme Court in Ames v. Kansas ex rel. Johnston (1884), held:

Within six months after the inauguration of the government under the Constitution, the Judiciary Act of 1789 was passed. The bill was drawn by Mr. Ellsworth, a prominent member of the convention that framed the Constitution, who took an active part in securing its adoption by the people, and who was afterwards Chief Justice of this Court….

[Given provisions such as section 13 of the Act, i]t thus appears that the first Congress, in which were many who had been leading and influential members of the convention, and who were familiar with the discussions that preceded the adoption of the Constitution by the States and with the objections urged against it, did not understand that the original jurisdiction vested in the Supreme Court was necessarily exclusive….

Acting on this construction of the Constitution, Congress took care to provide that no suit should be brought against an ambassador or other public minister except in the Supreme Court, but that he might sue in any court he chose that was open to him. As to consuls, the commercial representatives of foreign governments, the jurisdiction of the Supreme Court was made concurrent with the District Courts, and suits of a civil nature could be brought against them in either tribunal. With respect to States, it was provided that the jurisdiction of the Supreme Court should be exclusive in all controversies of a civil nature where a State was a party, except between a State and its citizens, and except, also, between a State and citizens of other States or aliens, in which latter case its jurisdiction should be original but not exclusive….

5. Over time, the zone of the Court’s original and exclusive jurisdiction has shrunk, but the principle underlying Ravara, Ames, and the 1789 Judiciary Act — that Congress may indeed shrink this original and exclusive jurisdiction — has apparently been accepted. Even if this was a mistaken interpretation of the Constitution (and I’m not sure it was), it seems to be a 220-year-old mistake, and our judicial system tends to be reluctant to disturb such old mistakes. To quote James Madison, sometimes “the question of the constitutional authority of the Legislature” to do something is seen as “precluded … by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.”

Or so it seems to me at this point; please do correct me — preferably with citations to relevant authority — if I’m mistaken.

UPDATE: Here, by the way, Justice Iredell’s dissenting opinion in United States v. Ravara (1793), which I take it echoes (with “questions relating to the Public Agents of Foreign Nations” suitably changed to “cases involving States”) the view of those who think that cases such as United States v. Arizona should indeed be within the Supreme Court’s exclusive jurisdiction:

I do not concur in this opinion, because it appears to me, that for obvious reasons of public policy, the Constitution intended to vest an exclusive jurisdiction in the Supreme Court, upon all questions relating to the Public Agents of Foreign Nations. Besides, the context of the judiciary article of the Constitution seems fairly to justify the interpretation, that the word original, means exclusive, jurisdiction.

The questions are (1) whether you think Justice Wilson (who, for whatever it’s worth, was a leading drafter of the Constitution) or Justice Iredell had the better view, and (2) perhaps more importantly, what you think of the significance of the longstanding judicial and legislative precedent on the matter.