The Constitution established the Supreme Court’s original jurisdiction to provide a tribunal of the highest stature for disputes to which a state was a party and for cases involving the representatives of foreign nations. In practice, the Supreme Court has only rarely exercised its jurisdiction over foreign officials. Instead, the Supreme Court’s original docket has been dedicated largely to resolving disputes between state governments.

Article III, section 2, of the Constitution distributes the federal judicial power between the Supreme Court’s appellate and original jurisdiction, providing that the Supreme Court shall have original jurisdiction in “all cases affecting ambassadors, other public ministers and consuls,” and in cases to which a state is a party. In the Judiciary Act of 1789, Congress made the Supreme Court’s original jurisdiction exclusive in suits between two or more states, between a state and a foreign government, and in suits against ambassadors and other public ministers. The Supreme Court’s jurisdiction over the remainder of suits to which a state was a party was to be concurrent, presumably with state courts since the statute did not expressly confer these cases upon the inferior federal courts.

In the eighteenth and nineteenth centuries, federal justices and judges differed on the question of whether state and inferior federal courts could constitutionally exercise jurisdiction in cases that fell within the Supreme Court’s original jurisdiction under Article III. In the case of Farquhar v. Georgia in 1793, the U.S. Circuit Court for the District of Georgia ruled that an individual could not sue a state in a federal circuit court because the Constitution’s grant of original jurisdiction to the Supreme Court was exclusive. The U.S. Circuit Court for the District of Pennsylvania ruled that same year, however, in the case of United States v. Ravara, that the circuit courts could exercise criminal jurisdiction over a foreign consul, despite Article III’s provision that the Supreme Court exercised original jurisdiction over “all cases affecting” consuls. In his 1803 opinion in Marbury v. Madison, Chief Justice John Marshall stated that Congress could not confer the Supreme Court’s original jurisdiction on any other court. The Supreme Court did not settle the question until the 1888 decision in Ames v. Kansas, in which the Court ruled that parties embraced by the Supreme Court’s original jurisdiction could bring suit in any court with jurisdiction over the parties or subject matter.

In the 1794 decision in Chisholm v. Georgia, the Supreme Court sparked controversy when it ruled that Article III permitted an original suit in the Supreme Court against a state by a citizen of another state. Congress and the states reacted quickly to what many saw as a threat to the sovereignty of the states and adopted the Eleventh Amendment to the Constitution, which prohibited such suits in the federal courts.

The most frequent exercise of the Supreme Court’s original jurisdiction has been in suits between two or more states. In the 1838 case of Rhode Island v. Massachusetts, the Supreme Court upheld this jurisdiction in response to a claim of sovereign immunity. The Court ruled that the states had surrendered a portion of their sovereignty under the Constitution and in ratifying it subjected themselves to the federal judicial power in disputes that would otherwise have been settled through diplomacy or force by truly independent states. Prior to the Civil War, the Court heard only a handful of suits between two or more states, and all involved boundary disputes. In the twentieth century, states have also resorted to the Supreme Court to adjudicate disputes over water rights, especially arising out of competing claims of western states to interstate water sources. Suits between states have also dealt with disputes over contracts, the impact of state economic regulations, and environmental pollution.

The Supreme Court has narrowly interpreted its constitutional grant of original jurisdiction. In Marbury v. Madison, the Supreme Court ruled that Congress could not expand the Court’s original jurisdiction beyond that granted in the Constitution. Beginning with Cohens v. Virginia in 1821, the Court held that its original jurisdiction was defined entirely by the nature of the parties to a suit, not the subject matter. The Court declined to hear in the first instance cases under the Constitution, laws, and treaties of the United States unless they strictly conformed to one of the state party suits specified in the Constitution: a suit between two or more states, between a state as plaintiff and citizens of another state, and between a state as plaintiff and foreign citizens or governments.

The Supreme Court established an important exception to this rule when it held that the Court would hear original suits brought by the United States against a state. In the 1892 case of United States v. Texas, Justice John Marshall Harlan ruled that since the federal judicial power extended to “cases in which the United States was a party,” and the Court was granted jurisdiction over cases to which a state was a party, the Court would take jurisdiction in a United States suit against a state. Such suits by the United States increased after the 1890s and usually involved disputes with states over land, though in the late twentieth century they also included a few suits to enforce provisions of the Federal Voting Rights Act.

In the late twentieth century, the Supreme Court further limited its original docket by declaring that it would exercise discretion over whether to hear cases even if they were legitimately within the Court’s jurisdiction. In a series of cases in 1971, including Ohio v. Wyandotte Chemicals Corp., the Court declined to hear environmental pollution claims brought by states against corporations that dealt with complex and technical factual questions. The justices ruled that the states had other available forums to bring their claims and that the cases were not “appropriate” for the Court in light of its primary function as the nation’s highest appellate tribunal. The Court resolved to examine the “seriousness and dignity” of claims so as to preserve its resources for consideration of appeals involving federal questions. The Supreme Court soon expanded its appropriateness doctrine to decline to hear some cases between two states, even where the Court’s jurisdiction was exclusive.

The Supreme Court’s original docket has always been a minute portion of its overall caseload. Between 1789 and 1959, the Court issued written opinions in only 123 original cases. Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing. The majority of cases filed have been in disputes between two or more states. The Court has generally accepted state party cases dealing with boundary and water disputes, but it has been much less likely to field original cases dealing with contract disputes and other subjects not deemed sufficiently substantial for the Court’s resources.

Further Reading:
“The Original Jurisdiction of the United States Supreme Court,” Stanford Law Review 11 (July 1959): 665–719.

Vincent L. McKusick, “Discretionary Gatekeeping: The Supreme Court’s Management of Its Original Jurisdiction Docket Since 1961,” Maine Law Review 45 (1993): 185–242.

Anne Marie C. Carstens, “Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court’s Original Jurisdiction Cases,” Minnesota Law Review 86 (2002): 625–716.

Charles Alan Wright and Mary Kay Kane, Law of Federal Courts, 6th Edition (St. Paul, MN: West Group, 2002), Chapter 13.

James E. Pfander, “Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases,” California Law Review 82, no. 3 (1994): 555–659.