Cite as: 593 U. S. ____ (2021) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
TEXAS v. CALIFORNIA
ON MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT
No. 153, Orig. Decided April 26, 2021
The motion for leave to file a bill of complaint is denied.
JUSTICE ALITO, with whom JUSTICE THOMAS joins, dis-
senting from denial of motion for leave to file complaint.
Suppose the following occurred. A Texan and a Califor-
nian are involved in a traffic accident in California. The
Texan tries to sue the Californian in federal district court
and invokes the “diversity” jurisdiction conferred by 28
U. S. C. §1332(a)(1), which provides that “[t]he district
courts shall have original jurisdiction of all civil actions . . .
between . . . citizens of different States” where the amount
in controversy exceeds $75,000. Suppose the district court
refuses to allow the filing of the complaint and explains: “I
know that the Constitution and a federal statute give me
jurisdiction over diversity cases, and I know that the Fram-
ers of the Constitution and the Congress that enacted the
statute thought that diversity jurisdiction was important
because it provides a neutral forum for out-of-state parties.
But in my opinion, that’s not really so important anymore,
and if I have to handle diversity suits, I won’t have the time
I need to deal with more important matters. Therefore, in
the exercise of my discretion, I am ordering that the com-
plaint not be accepted for filing.” Suppose a court of appeals
affirmed this decision and the case came before us. What
would we do?
We would reverse in the blink of an eye. We might also
wag a finger at the lower courts and remind them that a
federal court’s obligation to hear and decide cases within its
jurisdiction is “virtually unflagging.” Colorado River Water
Conservation Dist. v. United States, 424 U. S. 800, 817
2 TEXAS v. CALIFORNIA
ALITO, J., dissenting
(1976); see also, e.g., Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U. S. 118, 126 (2014); Sprint Com-
munications, Inc. v. Jacobs, 571 U. S. 69, 77 (2013). We
might emphasize that federal courts do not have freewheel-
ing discretion to spurn categories of cases that they don’t
like.
If this is how we would respond to this imaginary Texan
versus Californian tort suit, how can we refuse to allow the
filing of the complaint in this case? The State of Texas
wishes to sue the State of California and invokes our “orig-
inal and exclusive jurisdiction of all controversies between
two or more States.” 28 U. S. C. §1251(a); see also U. S.
Const., Art. III, §2, cl. 2. Can we justify our refusal to en-
tertain Texas’s suit on essentially the same ground that we
would reject out of hand in the hypothetical diversity case
just described, that is, on the ground that our original juris-
diction no longer seems as important as it was when the
Constitution was adopted, and that a proliferation of origi-
nal cases would crowd out more important matters on our
appellate docket? See Illinois v. Milwaukee, 406 U. S. 91,
93–94 (1972); Ohio v. Wyandotte Chemicals Corp., 401 U. S.
493, 497–499 (1971). It is not easy to see how the refusal to
entertain Texas’s suit can be justified on that ground—par-
ticularly since our rejection of Texas’s complaint leaves the
State in a more difficult position than our imaginary Texas
motorist. That person could at least file suit in a state
court, but if our jurisdiction under §1251(a) is truly exclu-
sive, the State is left without any judicial forum. Cf. Fran-
chise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___ (2019) (slip
op., at 13) (noting “inability of one State to hale another into
its courts without the latter’s consent”).
In fairness to the Court, what it does in this case—claim-
ing the discretion to refuse to entertain Texas’s suit—is con-
sistent with a practice the Court has followed for the past
45 years. But in all that time, the Court has never provided
Cite as: 593 U. S. ____ (2021) 3
ALITO, J., dissenting
a convincing justification for the practice. In Cohens v. Vir-
ginia, 6 Wheat. 264 (1821), Chief Justice Marshall’s opinion
for the Court famously proclaimed: “We have no more right
to decline the exercise of jurisdiction which is given, than to
usurp that which is not given. The one or the other would
be treason to the constitution.” Id., at 404.
The Court has stepped back a bit from this categorical
pronouncement—but only a bit. See, e.g., Sprint Commu-
nications, Inc., 571 U. S., at 77. The Court has repeatedly
stressed that a federal court is almost always obligated to
entertain a case over which it has jurisdiction. Ibid. In-
stances in which this is not required are the rare exception.
The Court’s practice regarding original jurisdiction cases,
however, has expanded far beyond anything that might be
called an exception. Indeed, commentators have written
that the practice has made our original jurisdiction “ ‘almost
as discretionary as [our] certiorari jurisdiction over appel-
late cases.’ ” S. Shapiro, K. Geller, T. Bishop, E. Hartnett,
& D. Himmelfarb, Supreme Court Practice 639 (10th ed.
2013) (hereinafter Stern & Gressman).
I
How did the Court come to adopt a practice that seems so
inconsistent with the principle the Cohens Court thought
self-evident? Like many a questionable habit, the practice
developed incrementally. For the first 150 years after the
adoption of the Constitution, the Court never refused to
permit the filing of a complaint in a case falling within its
original jurisdiction.1 See Stern & Gressman 634; Steven-
son, Exclusive Original Jurisdiction of the United States
——————
1 The Court did not accept every case filed during that period, of
course—it rejected some for lack of standing and on account of other jus-
ticiability defects. See, e.g., Louisiana v. Texas, 176 U. S. 1, 24 (1900)
(Harlan, J., concurring in result) (arguing Article III did not bestow ju-
risdiction over cases testing the constitutionality of “local statutes or reg-
ulations that do not affect the property or the powers of the complaining
State in its sovereign or corporate capacity”); see generally Stern &
4 TEXAS v. CALIFORNIA
ALITO, J., dissenting
Supreme Court: Does it Still Exist? 1982 B. Y. U. L. Rev.
727, 729. The first whisper of the notion that the Court
might decline to exercise its original jurisdiction appeared
in Louisiana v. Texas, 176 U. S. 1 (1900). There, the Court
held that the case did not actually constitute a dispute be-
tween two States, but it added that the Court’s jurisdiction
to hear such suits “is of so delicate and grave a character
that it was not contemplated that it would be exercised save
when the necessity was absolute.” Id., at 15.
Another 39 years would go by before the Court took the
next step toward its current practice, and when it took that
step, it did so in a roundabout way. In Massachusetts v.
Missouri, 308 U. S. 1 (1939), the dispute concerned the two
States’ right to impose state inheritance taxes on securities
held in trusts that had been created by a Massachusetts de-
cedent but were administered in Missouri by Missouri trus-
tees. Noting that there were ample funds in the trusts to
pay the taxes imposed by both States, the Court first held
the dispute was not really between two States and that
therefore the controversy did not fall within the Court’s ex-
clusive original jurisdiction. Id., at 15–17. The Court then
turned to Massachusetts’s fallback argument that its claim
could be understood as one against Missouri citizens and
that therefore the claim at least fell within the Court’s non-
exclusive original jurisdiction over cases between a State
and a citizen of another State. The Court expressed doubt
that the bill could be read to assert such a claim and only
then turned to the question whether the Court would be ob-
ligated to entertain the claim if the bill could be interpreted
that way. The Court observed that a court is not always
required to entertain a suit within its jurisdiction when the
suit may be brought in another forum; that the suit at hand
was not necessary for Massachusetts’s “protection” because
Massachusetts could apparently bring its suit in a Missouri
——————
Gressman 622–634.
Cite as: 593 U. S. ____ (2021) 5
ALITO, J., dissenting
court; and that entertaining suits like this one would poten-
tially impose an “enormous burden” and “might seriously
interfere with the discharge by th[e] Court of its duty in de-
ciding cases and controversies appropriately brought before
it.” Id., at 18–19.
In Wyandotte Chemicals Corp., 401 U. S. 493, the Court
returned to the question of declining to exercise its non-ex-
clusive original jurisdiction. The Court acknowledged that
“it may initially have been contemplated that this Court
would always exercise its original jurisdiction when
properly called upon to do so.” Id., at 497. But the Court
opined that changes in the American legal system had ren-
dered that view “untenable, as a practical matter.” Ibid.
“What gives rise to the necessity for recognizing [the] dis-
cretion” to decline to entertain original-jurisdiction cases,
the Court explained, was “pre-eminently the diminished so-
cietal concern in our function as a court of original jurisdic-
tion and the enhanced importance of our role as the final
federal appellate court.” Id., at 499.
The next year, the Court said in dicta that it would exer-
cise the same discretion in cases within its exclusive origi-
nal jurisdiction: “We construe 28 U. S. C. §1251(a)(1), as we
do Art. III, §2, cl. 2, to honor our original jurisdiction but to
make it obligatory only in appropriate cases.” Illinois v.
Milwaukee, 406 U. S., at 93. The Court provided little jus-
tification for this assertion. In the next sentence, the Court
noted that an important factor in determining whether a
case is “appropriate” is “the availability of another forum
where there is jurisdiction over the named parties,” ibid.,
but it is hard to see how this factor has a bearing on the
refusal to exercise exclusive jurisdiction. And in the final
sentence devoted to the subject, the Court gave this expla-
nation: “We incline to a sparing use of our original jurisdic-
tion so that our increasing duties with the appellate docket
will not suffer.” Id., at 93–94.
The dicta in Illinois v. Milwaukee became a holding in
6 TEXAS v. CALIFORNIA
ALITO, J., dissenting
Arizona v. New Mexico, 425 U. S. 794 (1976) (per curiam),
where, for the first time, the Court declined to exercise its
exclusive jurisdiction in a controversy between two States.
See id., at 796–797. While the state parties could not liti-
gate in any other federal court, the Court justified its deci-
sion by observing that the “issues tendered” were already
being litigated in a pending state-court action. Id., at 797.
Since that time, the Court has repeatedly declined to ex-
ercise its exclusive original jurisdiction in state-versus-
state cases, relying on the rationales provided in these ear-
lier decisions. See, e.g., Wyoming v. Oklahoma, 502 U. S.
437 (1992); Louisiana v. Mississippi, 488 U. S. 990 (1988);
Texas v. New Mexico, 462 U. S. 554 (1983); California v.
Texas, 457 U. S. 164 (1982) (per curiam). Justices have
written separately to question whether we really have dis-
cretion to decline to hear such cases. See Arizona, 425
U. S., at 798–799 (Stevens, J., concurring); California v.
West Virginia, 454 U. S. 1027 (1981) (Stevens, J., dissent-
ing); Louisiana, 488 U. S., at 990 (White, J., dissenting); Ne-
braska v. Colorado, 577 U. S. 1211 (2016) (THOMAS, J.,
joined by ALITO, J., dissenting); Arizona v. California, 589
U. S. ___ (2020) (same). And scholars have criticized the
practice. See, e.g., R. Fallon, J. Manning, D. Meltzer, & D.
Shapiro, Hart and Wechsler’s The Federal Courts and the
Federal System 275 (7th ed. 2015); Shapiro, Jurisdiction
and Discretion, 60 N. Y. U. L. Rev. 543, 561, 576 (1985);
Stevenson, 1982 B. Y. U. L. Rev., at 747–748. But the Court
has not relented.
II
The practice of refusing to permit the filing of a complaint
in cases that fall within our original jurisdiction is question-
able, and that is especially true when, as in this case, our
original jurisdictional is exclusive. As the history recounted
above reveals, the Court adopted this practice without ever
providing a convincing justification. The principal reason
Cite as: 593 U. S. ____ (2021) 7
ALITO, J., dissenting
provided—that entertaining all suits between two States
would crowd out consideration of more important matters
on our appellate docket—rests on a dubious factual premise
and, in any event, is essentially indistinguishable from the
justification given by the imaginary district court judge
with a distaste for diversity cases. And the suggestion in
Louisiana v. Texas, 176 U. S., at 15, that we should hesitate
to entertain suits between two States because they are of a
“delicate and grave” character seems exactly backwards. It
is precisely because these disputes have a “delicate and
grave” character that they were placed exclusively in our
hands. See The Federalist No. 81, p. 487 (C. Rossiter ed.
1961) (A. Hamilton) (“In cases in which a State might hap-
pen to be a party, it would ill suit its dignity to be turned
over to an inferior tribunal”); California v. Arizona, 440
U. S. 59, 65–66 (1979). Unlike the regional courts of ap-
peals, the federal district courts, and the state courts, we
are not tied to any region or State and were therefore en-
trusted with the responsibility of adjudicating cases where
the suspicion of local bias may run high. Cf. The Federalist
No. 80 (A. Hamilton); Chisholm v. Georgia, 2 Dall. 419, 475
(1793). The present case is just such a suit.
III
This case involves a dispute between our two most popu-
lous States. In 2016, the California Legislature enacted a
law, AB 1887, that prohibits state-funded or state-spon-
sored travel to any State whose laws fail to meet specified
standards regarding discrimination on the basis of sexual
orientation, gender identity, or gender expression. See Cal.
Govt. Code Ann. §11139.8 (West). The law authorizes the
California attorney general to identify States that should
be subject to the ban, §11139.8(e)(1), and as of the date of
the filing of Texas’s motion, 11 States had been targeted:
Alabama, Iowa, Kansas, Kentucky, Mississippi, North Car-
8 TEXAS v. CALIFORNIA
ALITO, J., dissenting
olina, Oklahoma, South Carolina, South Dakota, Tennes-
see, and Texas. According to press releases issued by Cali-
fornia Attorney General Becerra and the State’s website, 9
of the 11 States were subjected to the ban because of laws
or practices designed to protect religious liberty.2 Iowa was
placed on the list because it won’t provide Medicaid cover-
age for gender-reassignment surgery. See California Will
Restrict State-Funded and State-Sponsored Travel
to Iowa (Sept. 13, 2019), https://oag.ca.gov/news/press-
releases/attorney-general - becerra - california -will - restrict-
state-funded-and-state-1. Travel to North Carolina was
banned because the State enacted a law requiring state
agencies to maintain separate-sex bathrooms and changing
facilities and that prohibited certain local antidiscrimina-
tion ordinances. See North Carolina Remains on List of Re-
stricted States (Apr. 12, 2017), https://oag.ca.gov/news/
press-releases/attorney-general-xavier-becerra-north-carolina-
remains-list-restricted-states. Several of the States placed
on California’s list have retaliated by imposing similar re-
strictions on state-funded or state-sponsored travel to Cali-
fornia. See Press Release, Office of Okla. Governor, Stitt
Issues Executive Order Banning State-Funded Travel to
California (Jan. 23, 2020), https://www.governor.ok.gov/
articles/press_releases/stitt-issues-executive-order-banning-
——————
2 See California Will Restrict State-Funded and State-Sponsored
Travel to South Carolina (Apr. 2, 2019), https://oag.ca.gov/news/press-
releases/attorney-general-becerra-california-will- restrict - state - funded -
and-state-0; California Will Restrict State-Funded and State-Sponsored
Travel to Oklahoma (June 1, 2018), https://oag.ca.gov/news/press-
releases / attorney - general - becerra-california-will-restrict-state-funded-
and-state; Alabama, Kentucky, South Dakota and Texas Added to List
of Restricted State Travel (June 22, 2017), https://oag.ca.gov/news/press-
releases/attorney-general-becerra-alabama-kentucky-south-dakota-and-
texas-added-list; Cal. Dept. of Justice, Frequently Asked Questions
(FAQs)—AB 1887: Why Are the States on the Travel Prohibition List?,
https://www.oag.ca.gov/ab1887/faqs (citing Kansas, Mississippi, and
Tennessee laws).
Cite as: 593 U. S. ____ (2021) 9
ALITO, J., dissenting
state-funded-; A. Sher, Legislators Strike Back at Califor-
nia Ban on State-Funded Travel to Volunteer State, Chat-
tanooga Times Free Press, Mar. 16, 2018, 2018 WLNR
8221967.
In seeking to file its complaint, Texas argues that this is
precisely the type of dispute for which our exclusive original
jurisdiction was designed. Texas writes that “ ‘the model
case for [the] invocation of [our] original jurisdiction is a
dispute between States of such seriousness that it would
amount to casus belli if the States were fully sovereign.’ ”
Brief in Support of Motion for Leave To File Bill of Com-
plaint 15 (quoting Texas v. New Mexico, 462 U. S., at 571,
n. 18; first alteration in original). Texas notes that eco-
nomic sanctions have often roiled international relations
and have sometimes led to war. Brief in Support of Motion,
15–18. And Texas reminds us that the Founders were well
aware of the danger of economic warfare between States.
See id., at 15–16 (citing The Federalist No. 7 (A. Hamilton)).
The Republic of Texas was an independent nation for 10
years (1836–1846), and the California Republic claimed a
similar status for a brief time in 1846. If they were inde-
pendent nations today, it is entirely possible that their dis-
pute would be the source of considerable international ten-
sion. As sovereign nations, they might resolve their dispute
by diplomacy, by submitting it to international arbitration,
or by self-help measures. When they entered the Union,
these two behemoths relinquished the full measure of sov-
ereign power that they once possessed, see Franchise Tax
Bd., 587 U. S., at ___–___ (slip op., at 13–15), but they ac-
quired the right to have their disputes with other States
adjudicated by the Nation’s highest court.
The Court now denies Texas that right. It will not even
permit the filing of Texas’s bill of complaint. This under-
standing of our exclusive original jurisdiction should be
reexamined. At a minimum, we should note probable juris-
diction and receive briefing and argument on the question.
10 TEXAS v. CALIFORNIA
ALITO, J., dissenting
Texas raises novel constitutional claims, arguing that Cal-
ifornia’s travel ban violates the Privileges and Immunities
Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce
Clause, Art. I, §8, cl. 3, and the Equal Protection Clause,
Amdt. 14, §1. I express no view regarding any of those
claims, but I respectfully dissent from the Court’s refusal
even to permit the filing of Texas’s complaint.