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Abstract

There is a special drama when a state sues another state invoking the original jurisdiction of the Supreme Court of the United States. In the international arena, similar disputes between sovereign states would be settled through diplomatic negotiations or armed conflict, and the stakes in the Supreme Court trial are often as high as in international disputes. The same special drama attends a trial in the Supreme Court with the United States opposing one or more of the fifty States. In drafting Article III of the Constitution the Founders treated the states as quasi-sovereigns and, to match the dignity of the tribunal to the dignity of the parties, gave the Supreme Court original jurisdiction over any case “in which a State shall be Party.” That special status went to only one other category—namely, cases “affecting Ambassadors, other public Ministers, and Consuls.” In fact, in two hundred years, the Supreme Court has decided only two cases on the merits under the foreign envoy branch of its original jurisdiction. During the most recent three decades that this paper studies, all five attempts to bring a suit under that branch of original jurisdiction have been summarily rejected by the Court. The absence of foreign envoy cases undoubtedly flows from the combined circumstances of more easily available forums in the federal district and state courts and the United States' liberality in granting diplomatic immunity by executive action. Therefore, for all practical purposes, the only cases in which the Supreme Court exercises its trial court jurisdiction are ones (in the language of Article III) “in which a State shall be Party.” This paper will concentrate its attention on state-party suits in the Supreme Court as a court of first and last instance.

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