Original Jurisdiction

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The original jurisdiction of a court (as distinguished from appellate jurisdiction) is its power to hear and decide a case from the beginning. In the federal court system, the district courts originally hear the overwhelming majority of cases. Most discussion and litigation concerning the jurisdiction of federal courts centers on the district courts' original jurisdiction. Yet the term "original jurisdiction" is heard most frequently in discussion and litigation concerning the jurisdiction of the Supreme Court.

The Constitution itself establishes the Supreme Court's original jurisdiction. After setting out the types of cases subject to the judicial power of the united states, Article III distributes the Supreme Court's jurisdiction over them: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases mentioned, the Supreme Court shall have appellate jurisdiction.…"

From the beginning, Congress has given the district courts concurrent jurisdiction over some of the cases within the Supreme Court's original jurisdiction, offering plaintiffs the option of commencing suit in either court. The Supreme Court has given this practice its stamp of constitutional approval. Furthermore, because the Court is hard-pressed by a crowded docket, it has sought ways of shunting cases to other courts. Thus, even when a case does fall within the Court's original jurisdiction, the court has conferred on itself the discretion to deny the plaintiff leave to file an original action. Typically the Court decides only three or four original jurisdiction cases each year, conserving its institutional energies for its main task: guiding the development of federal law by exercising its appellate jurisdiction.

Congress, however, cannot constitutionally diminish the Court's original jurisdiction. Nor can Congress expand that jurisdiction; the dubious reading of Article III in marbury v. madison (1803) remains firmly entrenched. However, the Supreme Court does entertain some actions that have an "original" look to them, even though Article III does not list them as original jurisdiction cases: habeas corpus is an example; so are the common law writs of mandamus and prohibition. The Court hears such cases only when they can be characterized as "appellate," calling for Supreme Court supervision of actions by lower courts.

Of the two types of original jurisdiction cases specified in Article III, the state-as-party case has produced all but a tiny handful of the cases originally decided by the Supreme Court. Officers of foreign governments enjoy a broad diplomatic immunity from suit in our courts, and, for motives no doubt similarly diplomatic, they have not brought suits in the Supreme Court. (The "ambassadors" and others mentioned in Article III, of course, are those of foreign governments, not our own.)

The state-as-party cases present obvious problems of sovereign immunity. The eleventh amendment applies to original actions in the Supreme Court; indeed, the amendment was adopted in response to just such a case, chisholm v. georgia (1793). Thus a state can no more be sued by the citizen of another state in the Supreme Court than in a district court. However, when one state sues another, or when the United States or a foreign government sues a state, there is no bar to the Court's jurisdiction.

The spectacle of nine Justices of the Supreme Court jointly presiding over a trial has a certain Hollywood allure, but the Court consistently avoids such proceedings. The seventh amendment commands trial by jury in any common law action, and at first the Supreme Court did hold a few jury trials. The last one, however, took place in the 1790s. Since that time the Court has always managed to identify some feature of an original case that makes it a suit in equity; thus jury trial is inappropriate, and findings of fact can be turned over to a special master, whose report is reviewed by the Court only as to questions of law.

The source of the substantive law applied in original actions between states is federal common law, an amalgam of the Anglo-American common law, policies derived from congressional statutes, and international law principles. Thus far no state has defied the Supreme Court sufficiently to test the Court's means of enforcing its decrees, but some states have dragged out their compliance for enough years to test the patience of the most saintly Justice.

Kenneth L. Karst


Note 1959 The Original Jurisdiction of the United States Supreme Court. Stanford Law Review 11:665–719.