Best Crazy Conservative Legal Theory Ever: the Supreme Court & SB 1070

Move aside birthers!! A few conservative publications breathlessly theorize that the recent court decision, preliminarily enjoining elements of Arizona’s controversial “papers please” immigration law (SB 1070), is invalid, as improperly decided by a district rather than the Supreme Court. The theory centers around a key part of Article III, giving the Supreme Court original jurisdiction over all cases in which a state “shall be Party.”

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.

Clever, but this result only obtains if the conferral of original jurisdiction is also exclusive. Exclusive jurisdiction is an extraordinary grant, and not one to presume lightly, unless explicitly stated. The same men who drafted the Constitution agreed, reading original jurisdiction in controversies “where a state shall be party” as a convenience for the state, where necessary, not a requirement for all litigation. See generally Ames v. Kansas, 111 U.S. 449, 464 (1884). Accordingly the modern enabling statute makes the Court’s jurisdiction exclusive only in matters where two or more states are parties. See 28 U.S.C. § 1251 (2010). Otherwise it’s discretionary, meaning the sovereign had the option to bring suit in the Supreme Court, but waived it.

Consider the practical effects of the conservative reading. States get sued all the damn time. Claims brought pursuant to the private cause of action for suit against the state, 42 U.S.C. § 1983, comprise the majority of federal dockets. Would we burden the Supreme Court with original jurisdiction over every case in which a state “shall be Party”? If so, why even have lower courts? Because the rule compels an absurd result, there must be a flaw. Surely the Founders knew better.Well, they did.

Note, too, that this is the rare case where the state is actually named as a defendant. Most of the time, an action filed in equity (seeking only an injunction) is against not the sovereign, but against her ministers. This follows from the ancient British notion of the crown’s infallibility (dieu et mon droit!). The state can never err; her ministers, though, may go awry, even when carrying out the commands of her citizens. Similarly, the sovereign is immune from suit without her consent, but her officers, where acting outside the state’s power, are definitionally operating without that immunity. See Ex parte Young, 209 U.S. 123 (1908).

God bless the tea parties, though. At least they make interesting, fundamental errors in their efforts to discredit everything they don’t like!

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