Power and Politics in Original Jurisdiction
66 Pages Posted: 4 Mar 2023 Last revised: 3 Aug 2023
Date Written: March 1, 2023
The original jurisdiction of the Supreme Court of the United States is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections and to Covid responses were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction.
This Article offers a comprehensive review of the original jurisdiction of state supreme courts. The paper and its appendix include a catalog of the original jurisdiction law of all 50 states; a survey of scores of recent original actions related to elections and Covid; and a review of relevant legislation from the last decade.
This Article also analyzes the distinct functional and institutional considerations relevant to state original jurisdiction. Functionally, original jurisdiction limits opportunities for appellate review, shifts factfinding responsibility, and has the potential to permit quicker resolution. Original jurisdiction also has the capacity to streamline litigation, presenting cleaner questions to the high court, without the frictions of lower-court litigation.
Institutionally, original jurisdiction distributes agenda-setting power among courts, parties, and legislatures. Original jurisdiction takes power from lower courts, depriving them of any opportunity to shape the course of litigation. Meanwhile, original jurisdiction often gives power to the state supreme court, though original jurisdiction also may make it more difficult for courts to engage in “avoidance” maneuvers that sometimes serve their interests. Original jurisdiction also interacts with party control, as it affects the ability of parties to shop for friendly forums. Aware of these effects, legislatures can use original jurisdiction to achieve their preferred outcomes, for example by channeling cases to ideologically friendly high courts—and away from ideologically hostile lower courts that might make mischief along the way.
This analysis has both theoretical and practical relevance. Theoretically, the capacity of decisions about original jurisdiction to advantage some political parties and causes over others shows its family resemblance to the more often studied phenomena of court curbing and court packing. Practically, while original jurisdiction is often designed to serve neutral values, it has the capacity to serve partisan ends—and given our political polarization, we should expect partisanship to play an increasing role in these seemingly neutral choices.
Keywords: Jurisdiction, supreme court, states, civil procedure
JEL Classification: K10, K30, K4
Suggested Citation: Suggested Citation