The Odd Clauses by Jay Wexler

trial courts can hear cases involving ambassadors, ministers, or consuls; cases between the United States and a state; and cases brought by a state against citizens of a different state. For these kinds of cases, then, the parties will go to the trial court first instead of the SupremeCourt. This is perfectly fine with the Supreme Court, it’s worth noting, because the Court is not set up to hold trials in any way. The justices are used to deciding cases on appeal, which means reading a lot of papers and thinking about weighty issues and having a short oral argument where they can ask the lawyers questions or badger them or show off how funny they think they are or whatever, but they are not equipped to hear witnesses or entertain objections (“Objection, Justices, the witness is not an oral surgeon!”) or listen to days and days of arguments about all sorts of minor issues, which is what judges have to do when they preside over a trial. Indeed, the Court would most likely be quite happy to never have to exercise its original jurisdiction at all. Unfortunately for the Court, however, there is one type of case that Congress has not allowed lower federal courts to hear—cases brought by one state against another state. For these cases, no other court would have the authority or the objectivity necessary to provide a fair trial. When a state sues another state, then, it has to come directly to the Supreme Court.
    I have always found these cases where one state sues another state to be fascinating. I think it has something to do with how the case names sound like college football games:
Missouri vs. Illinois, Arkansas vs. Oklahoma
,
Kansas vs. Colorado.
I’ve wanted to write something about them for a long time. A while back, I asked one of my favorite colleagues, a professor named Larry Yackle (that’s “YAKE-il,” as in “Shake-il” or “Bake-il,” not “Tackle”), if he wanted to cowrite a book with me called
State versus State: The Ten Greatest State against State Cases in Supreme Court History,
which, granted, would have made for one hell of an awful book, but I still think it’s a testimony to how serious legal academics tend to be that even Yackle—who brings his dog into work on the front ofhis Vespa—just looked at me like I was an idiot when I made the suggestion and walked away.
    The Supreme Court does not hear many state-versus-state cases—maybe one or two per year at the most. It doesn’t even hear all the cases brought by states against other states. Somewhat controversially, it has said that it will only hear such cases when “the threatened invasion of rights . . . is of serious magnitude.” So, for example, in 1981, the Court refused to hear a case brought by California against West Virginia alleging that the latter had breached a contract involving a football game between the West Virginia Mountaineers and the San Jose State Spartans; the Court, apparently, thought that the controversy lacked sufficient seriousness. It’s not clear that the Court should have the discretion to dismiss such cases. Sure, if one of the parties is not actually a state, it makes sense for the Court to dismiss the case, as it did when Illinois tried to sue Milwaukee (not a state) or when Mississippi was sued by the Principality of Monaco (again, not a state). But when one real state sues another real state, Justice Stevens, who dissented in the California versus West Virginia decision, might have had it right when he said that the Court has no discretion to refuse to hear such a dispute.
    So, why do states sue each other? The cases fall into several categories. Like the Ellis Island case, many of these disputes involve borders. One state thinks its property extends to the thirty-third parallel or whatever, and its neighboring state disagrees. States want more land so they can collect more tax money and claim more residents, thereby maybe