Wyoming v. Oklahoma/Dissent Thomas

by Clarence Thomas

Justice THOMAS, with whom THE CHIEF JUSTICE and Justice SCALIA join, dissenting.

Even if I believed that Wyoming had standing to challenge the Oklahoma statute (which, for the reasons given by Justice SCALIA, I do not), I would decline to exercise the Court's original jurisdiction here.

The Constitution provides that "[i]n all Cases . . . in which a State shall be a Party, the supreme Court shall have original Jurisdiction." U.S.C.onst., Art. III, § 2, cl. 2. Congress, in turn, has provided that "[t]he Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States." 28 U.S.C. § 1251(a). Given these provisions, one might expect-assuming the existence of a "case" or "controversy" that we would be required to exercise our original jurisdiction here, for a court having jurisdiction generally must exercise it. "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821) (Marshall, C.J.). As the Court observes, however, ante at 450-451, we have exercised discretion in declining to hear cases that fall within the literal terms of our original jurisdiction. See, e.g., United States v. Nevada, 412 U.S. 534, 538, 93 ,S.Ct. 2763, 2765, 37 L.Ed.2d 132 (1973) (per curiam ) (controversy between the United States and individual States); Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 497-499, 91 S.Ct. 1005, 1009-1010, 28 L.Ed.2d 256 (1971) (action by a State against the citizens of other States). We exercise this discretion even with respect to controversies between two or more States, which fall within our original and exclusive jurisdiction. ^[1] See, e.g., Texas v. New Mexico, 462 U.S. 554, 570, 103 S.Ct. 2558, 2568, 77 L.Ed.2d 1 (1983); California v. Texas, 457 U.S. 164, 168, 102 S.Ct. 2335, 2337, 72 L.Ed.2d 755 (1982) (per curiam ); Maryland v. Louisiana, 451 U.S. 725, 739, 101 S.Ct. 2114, 2125, 68 L.Ed.2d 576 (1981); Arizona v. New Mexico, 425 U.S. 794, 796-798, 96 S.Ct. 1845, 1846-1847, 48 L.Ed.2d 376 (1976) (per curiam ). I believe that the Court's decision to accept jurisdiction over this case is a misguided exercise of that discretion.

"It has long been this Court's philosophy that 'our original jurisdiction should be invoked sparingly.' " Illinois v. City of Milwaukee, 406 U.S. 91, 93, 92 S.Ct. 1385, 1388, 31 L.Ed.2d 712 (1972) (quoting Utah v. United States, 394 U.S. 89, 95, 89 S.Ct. 761, 765, 22 L.Ed.2d 99 (1969)). The sound reasons for this approach have been set forth on many occasions, see, e.g., Ohio v. Wyandotte Chemicals Corp., supra, 401 U.S., at 498, 91 S.Ct., at 1009; Maryland v. Louisiana, supra, 451 U.S., at 761-763, 101 S.Ct., at 2136-2137 (1981) (REHNQUIST, J., dissenting), and I need not repeat them here. As Chief Justice Fuller aptly observed almost a century ago, our original jurisdiction "is of so delicate and grave a character that it was not contemplated that it would be exercised save when the necessity was absolute." Louisiana v. Texas, 176 U.S. 1, 15, 20 S.Ct. 251, 256, 44 L.Ed. 347 (1900). In determining which cases merit the exercise of original jurisdiction, the Court typically has focused on two considerations: the nature of the claims involved and the availability of alternate forums where they can be addressed. See, e.g., Illinois v. City of Milwaukee, supra, 406 U.S., at 93, 92 S.Ct., at 1387; Massachusetts v. Missouri, 308 U.S. 1, 18-19, 60 S.Ct. 39, 43-44, 84 L.Ed. 3 (1939).

In my view, both factors cut strongly against exercising original jurisdiction here. Wyoming claims to be injured as follows: the Oklahoma statute decreases coal sales by Wyoming mining companies to Oklahoma buyers, which supposedly decreases the amount of coal those companies extract in Wyoming, which in turn supposedly decreases the tax revenues Wyoming collects from the companies when they extract the coal. Plainly, the primary dispute here is not between the States of Wyoming and Oklahoma, but between the private Wyoming mining companies and the State of Oklahoma, whose statute reduced the companies' sales to Oklahoma utilities. It is true, as the Court notes, ante at 451, that Oklahoma passed the statute in its sovereign capacity and that Wyoming collects taxes in its sovereign capacity. That States act qua States is certainly very relevant in assessing the "seriousness and dignity" of a claim. See Maryland v. Louisiana, supra, 451 U.S., at 764-766, 101 S.Ct., at 2138-2139 (REHNQUIST, J., dissenting). But it is also critical to examine the extent to which the sovereigns actually have clashed. Cf. Arizona v. New Mexico, supra, 425 U.S., at 797-798, 96 S.Ct., at 1847 ("In denying the State of Arizona leave to file, we are not unmindful that the legal incidence of [the challenged action by New Mexico] is upon the utilities"). In my view, an entirely derivative injury of the type alleged by Wyoming here even if it met minimal standing requirements-would not justify the exercise of discretionary original jurisdiction. Additionally, of course, Wyoming has advanced no reason why the affected mining companies (hardly bashful litigants) did not or could not themselves challenge the Oklahoma statute in another, more convenient, forum. The lower federal courts and the state courts are readily available as appropriate forums "in which the issues tendered here may be litigated." Id., at 797, 96 S.Ct., at 1847 (emphasis in original).

The implications of the Court's novel theory that tax-collection injury alone justifies exercise of original jurisdiction are, in my view, both sweeping and troubling. An economic burden imposed by one State on another State's taxpayers will frequently affect the other State's fisc. (That will virtually always be the case, for example, with respect to income taxes; if State A takes actions that reduce the income of the taxpayers of State B, State B will collect less income-tax revenue.) Under today's opinion, a State that can show any loss in tax revenue-even a de minimis loss, see ante at 452-453, and n. 11, that can be traced (albeit loosely) to the action of another State can apparently proceed directly to this Court to challenge that action. Perhaps the Court is not concerned about that possibility because of its "discretion" in managing its original docket. But, having extended the original jurisdiction to one State's claim based on its tax-collector status, the Court cannot, in the exercise of discretion, refuse to entertain future disputes based on the same theory. That would be the exercise not of discretion, but of caprice.

I respectfully dissent.

Notes

1. Justice STEVENS has stated that the Court's explanations for declining to exercise its nonexclusive original jurisdiction are "inapplicable" where, as here, its original jurisdiction is exclusive under 28 U.S.C. § 1251(a). California v. West Virginia, 454 U.S. 1027, 1027-1028, 102 S.Ct. 561, 561-562, 70 L.Ed.2d 470 (1981) (opinion dissenting from denial of motion to file bill of complaint). Similarly, commentators have suggested that the Court's statement that " 'the congressional grant of exclusive jurisdiction under § 1251(a) . . . requir[es] resort to our obligatory jurisdiction only in appropriate cases' " is "an oxymoron." P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 344 (3d ed. 1988) (quoting Maryland v. Louisiana, 451 U.S., at 739, 101 S.Ct., at 2125 (internal quotation omitted)). See also Shapiro, Jurisdiction and Discretion, 60 N.Y.U.L.Rev. 543, 561 (1985) (calling "unanswerable" criticism of the Court's discretionary approach to cases within its exclusive original jurisdiction).

As noted in text, the Court has held otherwise and those precedents have not been challenged here. The exercise of discretion is probably inevitable as long as the Court's approach to standing is as relaxed as it is today.