Alito On SCOTUS Original Jurisdiction

It is a rare day that I see eye to eye with Justice Alito, one of the archconservatives on the U.S. Supreme Court. But I have some sympathy for a dissent from denial of motion for leave to file a complaint today in the case of Texas v. California.

The U.S. Supreme Court has exclusive original jurisdiction in suits between U.S. states under Article III of the U.S. Constitution. But, in practice, for the last 45 years has been to require a state to file a motion for leave for file a complaint in the U.S. Supreme Court, similar to a petition for certiorari, before it will entertain a review of the case on the merits, effectively rendering it discretionary.

This means that when the Supreme Court denies leave to file a complaint, it denies a state all means of securing review of its claim on the merits.

Almost always, when a motion for leave to file a complaint is filed, the Supreme Court would have denied relief on the merits anyway, usually for lack of standing or some similar preliminary reason. 

But the constitutional text certainly seems to imply, and Justice Alito argues credibly, that the U.S. Supreme Court should consider the complaint substantively rather than making review truly discretionary, even if the complaint is then immediately dismissed on a motion to dismiss, although at that point it becomes something of a matter of form over substance.

SCOTUS blog explains the substance of the case:

Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection.

This is a case that it might very well be helpful to resolve in state v. state litigation, even though I'm loathe to think what the outcome on the merits would have been if it had been considered.