The Original Jurisdiction Clause

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.

—Chief Judge William H. Pryor Jr., Nathaniel Sutton, & William Strench

Introduction

Article III of the Constitution makes all federal courts—both the U.S. Supreme Court and inferior courts—courts of limited jurisdiction. Congress does not have to grant federal courts the full jurisdiction that Article III provides, but its jurisdictional grant cannot exceed the limits of Article III.¹ One constraint on the Court is its limited ability to hear cases as an exercise of its original jurisdiction. Original jurisdiction refers to the power to hear and decide cases in the first instance as opposed to the power to review another court’s judgment. Under Article III, the Supreme Court has original jurisdiction over only select interstate disputes and “cases affecting ambassadors, other public ministers and consuls,” but its jurisdiction in such disputes does not require congressional authorization.² Article III grants the Supreme Court appellate jurisdiction to hear a broader class of cases, subject to exceptions provided by Congress.

History Before 1787

Under the Articles of Confederation, “courts were a minor feature of the centralized government, which is unsurprising since it was a wartime constitution.”³ Article IX relied primarily on congressional designation of state tribunals for matters of continental concern with some appellate review by either congressional committees or a specially created court for capture cases.⁴ The Articles did not create any original jurisdiction as of right in a national court: The closest they came was a process for adjudicating state-to-state disputes when the states could not agree to their own arbitration procedures.⁵

The Constitutional Convention

The Virginia and New Jersey Plans reflected a widely recognized deficiency of the Articles of Confederation: The central government lacked a national tribunal to adjudicate state-to-state and international disputes.⁶ During the Convention, the original jurisdiction of the Supreme Court was kept narrow. On August 6, 1787, the Committee of Detail presented to the Convention the precise categories of the Court’s original jurisdiction, which included cases affecting ambassadors, public ministers and consuls, and those in which a state was a party.⁷ This draft also would have given the Supreme Court original jurisdiction over “the trial of impeachments of Officers of the United States.”⁸ Edmund Randolph’s Virginia Plan had proposed the impeachment of “any National officers” as a category of jurisdiction for a “National Judiciary.”⁹ The House and Senate were later empowered to handle impeachments.¹⁰ The limited scope of the Supreme Court’s original jurisdiction may have been based on a pragmatic concern that litigants would be oppressed by the burden of traveling to the national capital for too many suits.¹¹

Although the Original Jurisdiction Clause narrowly limited the Supreme Court’s original jurisdiction, the Court would have appellate jurisdiction over “all the other Cases” mentioned in Article III, subject to “such Exceptions” as Congress might make.¹² (The Appellate Jurisdiction Clause is discussed in Essay No. 135.) A draft in Edmund Randolph’s handwriting that was found in the papers of George Mason would have allowed Congress to shift at least some cases from the Supreme Court’s appellate jurisdiction to its original jurisdiction, but this proposal was rejected.¹³

The Ratification Debates

In Federalist No. 81, Alexander Hamilton wrote that “[t]he Supreme Court is to be invested with original jurisdiction, only” in the cases listed in the Original Jurisdiction Clause. He reasoned that the limited class of disputes in that provision was “so directly connected with the public peace . . . that . . . it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation.” Each of the disputes contemplated by the clause involved either the relationships of the United States with foreign countries or the rights of sovereign states.

During the Virginia Convention, two prominent delegates rejected interpreting the Exceptions Clause as empowering Congress to expand the original jurisdiction of the Supreme Court. Future Chief Justice John Marshall asked rhetorically, “What is the meaning of the term exception? Does it not mean an alteration and diminution?”¹⁴ He then answered that “Congress is empowered to make exceptions to the appellate jurisdiction, as to law and fact, of the Supreme Court. These exceptions certainly go as far as the legislature may think proper for the interest and liberty of the people.” Edmund Pendleton argued that “the legislature cannot extend its original jurisdiction, which is limited to these cases only.”¹⁵

Marshall and Pendleton were perhaps influenced by what James Pfander has described as Virginia’s “long struggle[] with the inconvenience of a centralized supreme court with broad original jurisdiction over civil and criminal proceedings at common law.”¹⁶ During the Pennsylvania Convention, James Wilson expressed a similar understanding of the Original Jurisdiction Clause: “In two cases the Supreme Court has original jurisdiction—that affecting ambassadors, and when a state shall be a party. It is true it has appellate jurisdiction in more, but it will have it under such restrictions as the Congress shall ordain.”¹⁷

The First Congress

Section 13 of the Judiciary Act of 1789, enacted by the First Congress, provided for the inferior federal courts to exercise concurrent jurisdiction with the Supreme Court with respect to some but not all of the categories of original jurisdiction.¹⁸ This statute addressed the Supreme Court’s original jurisdiction and confirmed the plain meaning of Article III: The Court may exercise original jurisdiction only in a narrow class of cases, although its jurisdiction over those cases need not be exclusive. Professor Akhil Amar has observed that “[n]othing in the explicit language or the geographic logic of Article III seems to prevent Congress from opting for original jurisdiction concurrent with the state courts, at least in state party cases.”¹⁹

In 1793, Circuit Justice James Wilson and Judge Richard Peters ruled that Section 13’s grant of concurrent jurisdiction was constitutional.²⁰ The Supreme Court would later reach the same conclusion.²¹

Marbury v. Madison

At the end of President John Adams’s Administration, the lame-duck Federalist Congress enacted the Judiciary Act of 1801, which created a new system of appellate courts and judgeships.²² Adams, a Federalist, then nominated members of his own party to the new positions.²³ After the Senate confirmed these judges, the President signed their commissions, which were records of their appointments, but not all these commissions were delivered before Adams left office.

William Marbury, who was confirmed by the Senate to serve as a justice of the peace, never received his commission. After President Thomas Jefferson was inaugurated, he discovered Marbury’s commission and others and instructed Secretary of State James Madison not to deliver them. When Marbury failed to receive his commission, he bypassed the lower court and filed a petition for a writ of mandamus directly in the Supreme Court invoking its original jurisdiction. A writ of mandamus commands officials (like Madison) to perform duties required by law (such as delivering Marbury’s commission). Congress had previously granted the Court the mandamus power in Section 13 of the Judiciary Act of 1789.²⁴

Chief Justice John Marshall wrote the majority opinion in Marbury v. Madison (1803). The Court held that if Section 13’s mandamus power was a grant of original jurisdiction, it was unconstitutional because Article III provides the exclusive bases for the Court’s original jurisdiction.²⁵ (There is a textualist argument that Section 13 gave the Supreme Court the mandamus power only in a case over which it already had jurisdiction.) The Original Jurisdiction Clause would be “mere surplusage” if Congress could expand the Court’s original jurisdiction to encompass a variety of other cases.²⁶ Marshall also concluded that the narrow class of cases in the Original Jurisdiction Clause was exclusive: By specifying a narrow subset of disputes, Article III implies the exclusion of other grounds for original jurisdiction.

Why did Marbury start his case in the Supreme Court? His attorney, former Attorney General Charles Lee, argued that the Court had already issued writs of mandamus in similar original actions on three occasions. Did Marshall ignore or misread this history, as some scholars have suggested?²⁷ Marshall acknowledged these isolated practices but treated their rarity as evidence of “how far the practice has conformed to the general doctrines” on which Marbury relied. In any event, the precedents Lee cited and others were cognizable under one of the enumerated bases of jurisdiction, were arguably appellate in nature, or did not involve mandamus.²⁸

In the end, Marbury held that Congress cannot expand the Court’s original jurisdiction.²⁹ Rather, the Original Jurisdiction Clause enumerates the only types of cases in which the Court may exercise original jurisdiction. Marbury was consistent with Hamilton’s observation in Federalist No. 81, as well as Marshall’s arguments during the Virginia Convention, that the Constitution defines the original jurisdiction of the Supreme Court.

Nevertheless, some modern critics argue that Congress’s power to make exceptions to the Court’s appellate jurisdiction necessarily implies the power to reallocate cases from the Court’s appellate jurisdiction to its original jurisdiction.³⁰ By using the exceptions power, these critics argue, Congress can enlarge the Court’s original jurisdiction. Professor Akhil Amar counters that “exceptions” leads to the opposite inference: Congress may withdraw disputes only from the Court’s already existing jurisdiction; Article III contains no “Additions Clause.”³¹

Post-Marbury Precedents

Since Marbury, the Supreme Court has clarified how to determine the scope of its original and appellate jurisdiction. Cohens v. Virginia (1821) considered an appeal in a criminal case that was decided by a state court and in which the state was a party.³² Virginia argued that the Supreme Court lacked appellate jurisdiction to review the state court’s decision because the Constitution granted the Supreme Court original, not appellate, jurisdiction over cases in which a state is a party. Under this position, the Court had to hear the dispute involving a state as an original matter or not at all.³³

Chief Justice Marshall, writing for the Court, rejected that argument. He reaffirmed the central holding of Marbury: “The original jurisdiction of this Court cannot be enlarged.”³⁴ But he acknowledged that the Court did not have to hear every case contemplated by the Original Jurisdiction Clause in the first instance. Instead, he reasoned that the Court’s appellate jurisdiction extends to “every case cognizable under” Article III of the Constitution, including questions “arising under . . . the Laws of the United States.”³⁵ The appellate jurisdiction, therefore, includes cases in which a state is a party even though those cases would also qualify for the exercise of original jurisdiction.

Ex parte Bollman (1807) held that the Court could exercise appellate jurisdiction over a petition for a writ of habeas corpus that would not be cognizable as an exercise of original jurisdiction. In that case, the petition required, before it was filed, a lower court order of commitment.³⁶ Therefore, the Court was reviewing an inferior judicial determination through its appellate jurisdiction.

Original Jurisdiction in Practice

At the Founding, boundary disputes between states were the disputes most likely to arise under the Court’s original jurisdiction.³⁷ At the turn of the twentieth century, the Court’s original jurisdiction docket began to diversify as water-rights disputes, pollution abatement, and Commerce Clause claims became more common.³⁸ Such disputes continue to this day.³⁹ More infrequently, the Court has allowed urgent constitutional challenges involving states to proceed on its original jurisdiction docket, such as disputes involving the Voting Rights Act.⁴⁰

When the Court accepts a case on its original jurisdiction docket, it will ordinarily appoint a special master to gather evidence, take sworn testimony, and issue a report.⁴¹ In some disputes, such as water-rights disputes, the Court reviews the special master’s factual conclusions through a deferential lens.⁴² Like a trial, the special master’s review of a dispute is a time-consuming endeavor. For example, a water dispute involving Kansas, Nebraska, and Colorado took sixteen years to resolve.⁴³ Although appointing a special master is certainly the Court’s preferred approach, it may conduct a jury trial itself. On at least one occasion, the Court has done so,⁴⁴ but that trial occurred before Marbury.

Open Questions

• Is the exercise of the Supreme Court’s original jurisdiction mandatory? The Court has routinely exercised discretion to decline to hear cases falling within the terms of its original jurisdiction.⁴⁵ Some originalists criticize this practice in light of the text that the Court’s original jurisdiction “shall” extend to certain controversies.⁴⁶
• Can Congress restrict the Court’s ability to hear original jurisdiction cases to less than what Article III grants? For example, could Congress create a court to hear interstate disputes and grant the Supreme Court only appellate jurisdiction? The Court has expressed skepticism with respect to this possibility but has never decided the issue.⁴⁷
• Can the Supreme Court exercise original jurisdiction over disputes between the United States and a state? The Court has answered affirmatively.⁴⁸ However, individual Justices have criticized that understanding of the clause,⁴⁹ and modern scholarship discusses the issue.⁵⁰

1. Sheldon v. Sill, 49 U.S. 441 (1850). ↩︎
2. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 74 (1860). ↩︎
3. Thomas H. Lee, Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787–92, 89 Fordham L. Rev. 1895, 1901 (2021). ↩︎
4. Id. at 1902–04. ↩︎
5. Articles of Confederation, art. IX, §§ 2–3. ↩︎
6. 2 Farrand’s 21–22, 223–24; 3 Farrand’s 600. ↩︎
7. 2 Farrand’s 186. ↩︎
8. Id.; 1 Farrand’s 237. ↩︎
9. 1 Farrand’s 21–22. ↩︎
10. 2 Farrand’s 493, 592. ↩︎
11. 3 Farrand’s 220; Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 475–78 (1989). ↩︎
12. 2 Farrand’s 186. ↩︎
13. Id. at 147, 425, 430–32. ↩︎
14. 3 Elliot’s 560. ↩︎
15. Id. at 518. ↩︎
16. James E. Pfander, Marbury, Original Jurisdiction, and the Supreme Court’s Supervisory Powers, 101 Col. L. Rev. 1515, 1551–52 & n.153 (2001). ↩︎
17. 2 Elliot’s 493. ↩︎
18. Act of Sept. 24, 1789, ch. 20, § 13, 1 Stat. 73, 80–81. ↩︎
19. Amar, supra at 492 n.219. ↩︎
20. United States v. Ravara, 2 U.S. (2 Dall.) 297, 298 (Cir. Pa. 1793). ↩︎
21. Bu00f6rs v Preston, 111 U.S. 252, 256–61 (1884); Ames v. Kan. ex rel. Johnston, 111 U.S. 449, 463–71 (1884). ↩︎
22. Judiciary Act of 1801, 2 Stat. 89 (1801), repealed by Judiciary Act of 1802, ch. 8, §§ 1–2, 2 Stat. 132. ↩︎
23. Louise Weinberg, Our Marbury, 89 Va. L. Rev. 1235, 1236–38 (2003). ↩︎
24. Act of Sept. 24, 1789, ch. 20, § 13, 1 Stat. 73, 80–81. ↩︎
25. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174–75 (1803). ↩︎
26. Id. at 174. ↩︎
27. Susan Low Bloch & Maeva Marcus, John Marshall’s Selective Use of History in Marbury v. Madison, 1986 Wis. L. Rev. 301 (1986). ↩︎
28. Weinberg, supra at 1321–1330. ↩︎
29. Marbury, 5 U.S. (1 Cranch) at 175. ↩︎
30. William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 Duke L. J. 1, 31–32 (1969). ↩︎
31. Amar, supra at 455, 465. ↩︎
32. 19 U.S. (6 Wheat.) 264 (1821). ↩︎
33. Id. at 392. ↩︎
34. Id. at 399. ↩︎
35. Id. ↩︎
36. 8 U.S. (4 Cranch) 75, 101 (1807). ↩︎
37. Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). ↩︎
38. Louisiana v. Texas, 176 U.S. 1, 19 (1900); Missouri v. Illinois, 180 U.S. 208 (1901). ↩︎
39. New Jersey v. New York, 523 U.S. 767 (1998); Florida v. Georgia, 592 U.S. 433 (2021). ↩︎
40. South Carolina v. Katzenbach, 383 U.S. 301 (1966). ↩︎
41. Mississippi v. Tennessee, 595 U.S. 15, 22–23 (2021). ↩︎
42. Texas v. New Mexico, 485 U.S. 388 (1988). ↩︎
43. Kansas v. Nebraska & Colorado, 574 U.S. 445, 451–53 (2015). ↩︎
44. Georgia v. Brailsford, Powell & Hopton, 3 U.S. (3 Dall.) 1 (1794). ↩︎
45. Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 505 (1971). ↩︎
46. Arizona v. California, 140 S.Ct. 684 (2020) (Thomas, J., dissenting from denial of motion for leave to file complaint). ↩︎
47. Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court’s Original and Exclusive Jurisdiction over Treaty-Based Suits by Foreign States, 104 Col. L. Rev. 1765, 1778 (2004); California v. Arizona, 440 U.S. 59, 65–66 (1979); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 300 (1888), overruled by Milwaukee Cnty. v. M.E. White Co., 296 U.S. 268 (1935); Kansas v. Colorado, 556 U.S. 98, 109 (2009) (Roberts, C.J., concurring). ↩︎
48. United States v. Texas, 143 U.S. 621, 643–45 (1892). ↩︎
49. Id. at 648–49 (Fuller, C.J., dissenting); Ex parte Republic of Peru, 318 U.S. 578, 598 (1943) (Frankfurter, J., dissenting). ↩︎
50. Lochlan Shelfer, The Supreme Court’s Original Jurisdiction over Disputes Between the United States and a State, 66 Buff. L. Rev. 193 (2018); James E. Pfander, Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases, 82 Calif. L. Rev. 555 (1994). ↩︎