The Odd Clauses

by Jay Wexler

  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 getting some more representation in Congress, and so the state that thinks it should have more property sues the other state. A few examples: Rhode Island sued Massachusetts in the 1830s over land next to Narragansett Bay; Indiana sued Kentucky over something called the Green River Island in the late nineteenth century; Missouri sued both Nebraska and Kansas over various pieces of land in the early twentieth century, and then Kansas sued Missouri over a different piece of land in the middle of the twentieth century. In 1913 New Mexico sued Texas over their boundary. Both states agreed that the border was defined by where the Rio Grande was in 1850, but they disagreed about exactly where this was. New Mexico put forth the testimony of witnesses who claimed to know where the river had traveled back then, but the testimony was rejected as unreliable, since the witnesses were “old men, some very old,” who hadn’t been on the river for sixty years, and even then had generally traveled in the dark because “in those years the country was wild and infested with hostile Indians.” In the early 1970s, in what Time magazine referred to as a “boiling dispute,” Maine patrol officers arrested a New Hampshire lobsterman for fishing in Maine waters. Believing that Maine had overstepped its boundaries, New Hampshire’s governor announced that “Maine has declared war on us!” and brought suit in the Court, which ended up ruling (sort of) for Maine.

  A second big group of cases involve water rights of various types. Many of the cases are about which state gets to use some body of water. Wyoming once sued Colorado over the Laramie River; Wisconsin once sued Illinois over parts of Lake Michigan; Connecticut sued Massachusetts over the Connecticut River; New Jersey sued New York over the Delaware River; and so on. A dispute between Nebraska and Wyoming over certain rights to the North Platte River went in and out of the Court for over sixty years. Other cases involve pollution. Did New Jersey have the right to throw sewage into New York harbor and cause “offensive odors”? Did New York have the right to create a giant sludge bed in Lake Champlain, or did this violate Vermont’s sovereignty?

  One of the most fascinating state-versus-state cases of all time took place at the very beginning of the twentieth century, when the Sanitary District of Chicago reversed the flow of the Chicago River in order to send its contaminated sewage water down the Mississippi River rather than into Lake Michigan. This was great for the residents of Chicago, but not so terrific for the citizens of St. Louis, where it was alleged that the arrival of “1500 tons of poisonous filth per day” had caused a typhus epidemic. Missouri sued Illinois, on the theory that the Sanitary District was an agent of the state. The first question was whether the Court would even entertain a suit like this; on that question, the Court said absolutely. In Justice Holmes’s words: “The nuisance set forth in the bill was one which would be of international importance—a visible change of a great river from a pure stream into a polluted and poisoned ditch. The only question presented was whether, as between the states of the Union, this court was competent to deal with a situation which, if it arose between independent sovereignties, might lead to war. . . . [T]he jurisdiction and authority of this court to deal with such a case as that is not open to doubt.” At the same time, though, the Court was worried about opening its doors to every claim that one state had polluted the waters of another state; it decided, therefore, that before it would intervene, “the case should be of serious magnitude, clearly and fully proved.” Examining the evidence before it in great detail—not only the typhoid statistics from St. Louis over the relevant period, but also experiments regarding the likelihood that typhus bacteria could survive the long journey from the Windy to the Gateway City—the Court concluded that the evidence was insufficient for it to act, and it dismissed Missouri’s complaint. St. Louis, I’m afraid, hasn’t been the same since.

  Tax disputes make up a third set of cases. My favorite cases within this category are those where the plaintiff state and the defendant state are far away from each other. If the boundary and water-rights cases resemble college football matchups between teams from the same conference, then cases involving distant states are like the games where a team from the ACC plays a school from the Big Ten. One of these cases involved a claim by California against Texas for the right to tax the estate of Howard Hughes, but that case actually turns out to be quite boring. A far more interesting case is Texas v. Florida et al., where Texas sued Florida, Massachusetts, and New York because it thought that Edward H. R. Green, the rich son of a prominent Massachusetts whaling family who died in New York in the mid-1930s, had been “domiciled” in Texas at his death, thus giving Texas rather than these other states the right to tax his estate. The Court had to decide which of these four states best represented Green’s home, in the sense of where he spent most of his time and where he intended to stay in the future. Analyzing the facts of Green’s life in excruciating detail, the justices found that Green’s real domicile at his death was Massachusetts, where he had built a $7 million estate, complete with “swimming pools, tennis courts, radio broadcasting stations, an airport, airship hangar and dock.” In the Court’s view, this investment, along with the fact that Green spent more time in Massachusetts than in any other state during his later years, trumped his connections with the other states, even though he did spend the winters in Florida (often on a houseboat) and continued to his dying day to say that he was a resident of Texas, where he had lived for twenty years earlier in his life and thereafter had even rented a room (occupied only by “a box containing a pair of trousers and a vest”). Inexplicably, the Court did not inquire into why anyone would ever want to wear a vest in Texas.

  Okay, so by now you get the point that I like these cases because they remind me of college football games. At one point while working on this book, I thought it would be fun to figure out which states have brought the most original-jurisdiction cases, which have had the most cases brought against them, and which states have done the best and worst in terms of their won-loss records. I envisioned a standings chart like you see for the NFL in the newspaper. To put my plan into effect, I went to my computer legal database and pulled up all the state-versus-state cases from our two-hundred-plus-year history. There are a lot of them. I started making notes. I worked on the project for maybe an hour and a half. I got through about three of the cases (some of these old cases are hard to read). Then I decided, Who the hell am I kidding, I have a family, my editor is a stickler about her deadlines, I’m not doing this. And then I went home.

  I mentioned before that the justices of the Supreme Court would probably prefer not to hear any original-jurisdiction cases at all, because
the Court is set up to consider cases on appeal, which means that by the time it gets the case, the lower courts have already sifted through the testimony and evidence and figured out what actually happened. The Supreme Court doesn’t generally busy itself with this painstaking task; instead it focuses primarily on deciding purely legal issues (e.g., Does the Clean Air Act allow agencies to weigh costs and benefits when setting pollution standards? Does the equal-protection clause require states to allow gay marriage? Does the thirty-day clock governing removal of actions from state to federal court contained in 28 U.S.C. § 1446(b) start running when the defendant is officially served with a complaint, or might it begin earlier, such as when the defendant receives a faxed copy of that document?). In original-jurisdiction cases, however, there is no lower court to sift through the facts, so the Supreme Court has to sort through them itself. Theoretically, the justices could do this by holding their own trials, but while the Court has done this three times in its history, its practice these days is almost invariably to delegate its fact-finding duties to an experienced individual known as a “special master.”

  Special masters do everything that a trial judge typically would do in a case, and then some. Almost no rules constrain the ability of the special master from discovering every fact that might be potentially relevant to deciding the case. Special masters preside over trials, call witnesses themselves (trial judges rarely do this), take evidence, collect documents, consider procedural motions, rule on objections, and do countless other things to investigate everything having to do with the dispute. After the trial is over and the evidence is all collected, the special master prepares something called a “finding of facts” laying out exactly what he (and I do mean “he”—the Court didn’t appoint a female special master until January 2008) thinks happened and then ultimately renders a tentative decision in the case that goes up to the Court for its review. Just to get a sense for how much work is involved in one of these cases, consider the Ellis Island controversy, where the special master collected two thousand documents, compiled four thousand pages of testimony, held a trial in one of the side rooms of the Supreme Court that lasted twenty-three days and involved the testimony of twenty-one witnesses, and then prepared a nearly two-hundred-page report summarizing his findings and putting forth his recommendations for the Court.

  So, who are these special masters anyway? And, moreover, why hasn’t the author—who clearly has a keen interest in these cool cases—been appointed one yet? Sometimes the Court appoints prominent academics like the dean of a major law school (not, in other words, a barely tenured professor who spends his time writing books about weird clauses of the Constitution). The special master in the Ellis Island case, for instance, was Paul Verkuil, who has been the dean at both Tulane Law School and Cardozo Law School in New York City. Other times the justices choose a prominent private lawyer to serve as special master; this can be a problem, however, because these lawyers are incredibly expensive. The states involved in the suit generally split the cost of the special master, which can run up into the seven figures if the justices choose a partner at a big-city law firm. Finally, the justices have often chosen retired or senior judges to serve as special masters. Indeed, on three occasions, a former Supreme Court justice has served in the position, the most recent time being when former justice Tom Clark was appointed to serve as the special master in the aforementioned “boiling dispute” between Maine and New Hampshire over lobster-fishing rights.

  Critics, including even some sitting justices, have occasionally called into question the use of special masters by the Supreme Court in original-jurisdiction cases. The money thing is one prominent critique; another is that special masters have too much power and freedom to do whatever they want. Those who voice the latter objection argue that the Supreme Court, or perhaps Congress, should come up with specific rules and regulations to better constrain them. There’s even an argument that the special master position—because it authorizes people who do not enjoy life tenure and salary protection to exercise a sort of “judicial power”—violates Article III of the Constitution.

  In my view, these objections are overstated. The only one with any real weight is the argument that using a big-firm private lawyer costs the litigating states an excessive amount, but this can be solved either by hiring public officials to serve as special masters or by refusing to pay law-firm rates to private lawyers who serve in the position. No, my main problem with using special masters is that it’s just no fun. Sure, I get it. The Court is used to reviewing decisions of other courts, so it appoints a special master to essentially act as a lower court. But wouldn’t it be way more exciting if the justices went back to holding trials themselves? Maybe they could do them in the summer, when the justices aren’t doing anything anyway except skipping away on boondoggles to places like Madrid and Reykjavik. I’d love to see the justices arguing with each other about whether to let in a piece of evidence or to grant an objection. Here’s how I imagine it playing out:

  In a crowded courtroom, while the nine justices look on, each with his or her own gavel, a lawyer examines a witness.

  LAWYER: So, why did the rich dead man whose property both states want spend his winters in Florida?

  WITNESS: Well, the cold weather exacerbated his temporomandibular joint discomfort.

  OPPOSING LAWYER: Objection, the witness is not an oral surgeon!

  The bench erupts. Everyone yells at once, banging gavels.

  JUSTICES ALITO, KENNEDY, ROBERTS, AND SCALIA: Objection granted.

  JUSTICES BREYER, GINSBURG, SOTOMAYOR, AND KAGAN: Objection overruled.

  JUSTICE SCALIA [biting his gavel in half]: Overruled? Are you kidding? Liberal fools.

  JUSTICE BREYER: As I see it, this objection raises a fascinating theoretical issue. Imagine, if you will, that . . .

  Justice Breyer talks nonstop about various things nobody understands for about ten minutes.

  JUSTICE KENNEDY: This is hard, no doubt about it. Maybe the objection should be overruled after all. No, I guess it should be granted. No, overruled. No, granted. Definitely granted. Unless . . .

  JUSTICE SOTOMAYOR: As a Latina woman, I think I see this issue differently from the rest of you. I say overruled!

  JUSTICE ROBERTS: It looks like we’re deadlocked. Justice Thomas, you are the deciding vote. What do you think?

  Silence.

  JUSTICE ROBERTS: Clarence? Hello.

  Nothing.

  Okay, enough of this.

  Remember all those millions of immigrants who entered the United States through Ellis Island? Well, it turns out they all landed in New Jersey. There is an ancient and universally followed legal rule called the rule of “avulsion,” which, when applied to a situation like this, says that when additional territory is added to an island by fill material, the added area belongs not to the party that owns the island but to the party that controls the water where the fill material was added. In other words, since the US government enlarged the island by adding dirt and rocks to the water around the original three-acre Ellis Island, and since the water around that original island was controlled by New Jersey under the 1834 compact, the twenty-four acres of land added to the island belonged to New Jersey and not New York.

  Figuring that the avulsion rule would work to New Jersey’s favor, New York had advanced a second argument in the case, which was that even if New Jersey originally owned the added twenty-four acres, New York nonetheless gained sovereignty over that land because it had acted as though it had sovereignty over it for a long period of time without any objection from New Jersey. Unfortunately for New York, however, the special master concluded—and the Court agreed—that New York’s evidence on this score was paltry at best. The Court was not impressed, for example, that New York had recorded five birth certificates of babies born on Ellis Island during the sixty-four years between when the federal government started adding land to the island and the time that New Jersey clearly started to assert that it had sovereignty over the
filled portions. New York also tried to argue that over those sixty-four years, most people thought Ellis Island was in New York. This actually might have been relevant, said the Court, but it nonetheless found that New York had failed to put forth a strong enough showing. For example, the Court was not wowed by the testimony of “one William Hewitt, who lived in the officers’ quarters on the Island with his family from July to September 1940 when he was one year old [and] testified that although he had ‘no personal recollection of living on the Island, he has always thought that at that time he was living in New York.’ ” And although a dissenting Justice Stevens thought the “New York” labeled landing cards and the like were sufficient to show that most people thought the island was in New York, the majority was unconvinced, since the “New York” on those documents referred to the “New York Immigration District,” which at the time included northern New Jersey.

  The framers sure knew what they were doing when they created the Constitution. One of the big risks of bringing together a bunch of strong, independent states in one unified country was that inevitably there would be times when the states would not get along. The framers knew that states would struggle and compete and disagree with each other over all sorts of things, and they tried to take steps to limit the chance that these disagreements would erupt into outright conflict and violence. A number of constitutional provisions serve this purpose. Article I, Section 8, gives the federal government the power to regulate interstate commerce; a corollary of this power, as the Supreme Court has long recognized, is that individual states themselves cannot regulate interstate commerce. The “dormant commerce clause,” as it’s known, prevents states from using their regulatory power to discriminate against goods from other states. A state, for example, that prohibited the sale of out-of-state oranges within its borders to protect its in-state citrus industry would soon find itself on the losing end of a constitutional controversy. Likewise, the so-called full faith and credit clause of Article IV provides that judicial judgments made in one state must be given full effect in other states. Someone who is found negligent by a jury in Arkansas, for instance, cannot move to Missouri and expect to find refuge.