Thursday, March 8, 2018

RIVERS RUN THROUGH THE SUPREME COURT

In 1801, when John Marshall was appointed the first Chief Justice of the Supreme Court, the Court was not the authoritative and powerful branch of the U.S. government that it is today. Over Marshall's 34 year tenure on the bench, his opinions molded the scope of the Court's jurisdiction. In doing so, he established concepts that we take for granted today.

For example, one of his more famous opinions was in Marbury v. Madison*, where the Court determined that legislation can be voided as being unconstitutional. Thus, the Court evolved to become the "final arbiter" of the constitutionality of federal and state laws, regulations and actions.

Another Marshall opinion, McCulloch v. Maryland**, held that Congress has the power to pass all laws necessary and proper to carry out its delegated powers. Thus, over the years, the "necessary and proper" clause of the Constitution has been a "workhorse" to sustain legislation.

Today, the Supreme Court takes on many thorny issues which grab media headlines and germinate talking heads chatter. However, there are certain cases before the Court that seem to draw little attention except from the immediate parties. Specifically, the Court has original jurisdiction, not appellate jurisdiction, in disputes between the states. This means that litigation begins and ends in the Court. Typically, fact finding may be before a special master appointed by the Court.

Recently, the Supreme Court has entered rulings in two cases involving compacts between states for the use of river water available to them. In Montana v. Wyoming***, the Court entered judgment against Wyoming in favor of Montana for violation of the Yellowstone River Compact The violations resulted form Wyoming's reduction of a volume of water available in the Tongue River at the state line between the two states. The Court awarded Montana $67,270.87. In addition, the Court entered a decree detailing the terms of the Compact to be followed.

In another recent case before the Court, Texas complained that New Mexico allegedly was taking more water than permitted under the Rio Grande Compact****. However, the decision involved the limited issue whether the United States could intervene in this dispute between states. The Court stated that it has authority to mold original actions before it. It said that the federal government may participate in state compact suits in order to defend "distinctively federal interests" in a way that litigants in traditional litigation may not be permitted. The Court, however, did not deal with the question whether the United states could begin litigation against a state to compel a state to performs its obligations under a compact.

So, while the Court's rulings for the most part get great attention, some cases, like rivers, quietly meander through the judicial process at the highest court in the land.

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* 5 U.S. 137 (1803)

** 17 U.S. 316 (1819)

*** 583 U.S.__(February 20, 2018)

**** 583 U.S. __(March 5, 2018)

© Daniel J. Kucera 2018

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