Cite as: 577 U. S. ____ (2016) 1 

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

NEBRASKA, ET AL. v. COLORADO

ON MOTION FOR LEAVE TO FILE A BILL OF COMPLIANT

No. 144, Orig. Decided March 21, 2016

The motion for leave to file a bill of complaint is denied.

 JUSTICE THOMAS, with whom JUSTICE ALITO joins, 

dissenting from the denial of motion for leave to file

complaint. 

Federal law does not, on its face, give this Court discretion to decline to decide cases within its original jurisdiction. Yet the Court has long exercised such discretion, and 

does so again today in denying, without explanation, 

Nebraska and Oklahoma’s motion for leave to file a complaint against Colorado. I would not dispose of the complaint so hastily. Because our discretionary approach to 

exercising our original jurisdiction is questionable, and 

because the plaintiff States have made a reasonable case 

that this dispute falls within our original and exclusive 

jurisdiction, I would grant the plaintiff States leave to file

their complaint. 

I 

The Constitution provides that “[i]n all Cases . . . in 

which a State shall be [a] Party, the supreme Court shall 

have original Jurisdiction.” Art. III, §2, cl. 2. In accordance with Article III, Congress has long provided by statute that this Court “shall have original and exclusive 

jurisdiction of all controversies between two or more 

States.” 28 U. S. C. §1251(a).

Federal law is unambiguous: If there is a controversy 

between two States, this Court—and only this Court—has 

jurisdiction over it. Nothing in §1251(a) suggests that the 

Court can opt to decline jurisdiction over such a contro- 
2 NEBRASKA v. COLORADO

THOMAS, J., dissenting

versy. Context confirms that §1251(a) confers no such discretion. When Congress has chosen to give this Court discretion over its merits docket, it has done so clearly. 

Compare §1251(a) (the Court “shall have” jurisdiction over 

controversies between States) with §1254(1) (cases in the 

courts of appeals “may be reviewed” by this Court by writ 

of certiorari) and §1257(a) (final judgments of state courts 

“may be reviewed” by this Court by writ of certiorari).

The Court’s lack of discretion is confirmed by the fact 

that, unlike other matters within our original jurisdiction, 

our jurisdiction over controversies between States is exclusive. Compare §1251(a) with §1251(b) (the Court “shall 

have original but not exclusive jurisdiction” of other cases 

over which Article III gives this Court original jurisdiction). If this Court does not exercise jurisdiction over a 

controversy between two States, then the complaining 

State has no judicial forum in which to seek relief. When 

presented with such a controversy, “[w]e have no more 

right to decline the exercise of jurisdiction which is given, 

than to usurp that which is not given.” Cohens v. Virginia, 

6 Wheat. 264, 404 (1821) (Marshall, C. J.).

Nonetheless, the Court has exercised discretion and 

declined to hear cases that fall within the terms of its 

original jurisdiction. See, e.g., United States v. Nevada, 

412 U. S. 534, 537–540 (1973) (per curiam) (controversy 

between United States and individual States); Ohio v. 

Wyandotte Chemicals Corp., 401 U. S. 493, 500–505 (1971) 

(action by a State against citizens of other States). The 

Court has even exercised this discretion to decline cases

where, as here, the dispute is between two States and thus 

falls within our exclusive jurisdiction. See, e.g., Arizona v. 

New Mexico, 425 U. S. 794, 796–798 (1976) (per curiam). 

The Court has concluded that its original jurisdiction is 

“obligatory only in appropriate cases” and has favored a 

“sparing use” of that jurisdiction. Illinois v. Milwaukee, 

406 U. S. 91, 93–94 (1972). The Court’s reasons for trans-
Cite as: 577 U. S. ____ (2016) 3 

THOMAS, J., dissenting

forming its mandatory, original jurisdiction into discretionary jurisdiction have been rooted in policy considerations. The Court has, for example, cited its purported lack 

of “special competence in dealing with” many interstate

disputes and emphasized its modern role “as an appellate 

tribunal.” Wyandotte Chemicals Corp., 401 U. S., at 498; 

see id., at 497–499. 

I have previously applied the Court’s precedents taking 

this discretionary approach to our original jurisdiction. 

See Wyoming v. Oklahoma, 502 U. S. 437, 474–475, n. 

(1992) (dissenting opinion) (acknowledging precedents, 

noting that they “have not been challenged here,” and 

arguing against exercising jurisdiction). I have also 

acknowledged that “sound reasons” support that approach. 

Id., at 475.

Because our discretionary approach appears to be at 

odds with the statutory text, it bears reconsideration. 

Moreover, the “reasons” we have given to support the

discretionary approach are policy judgments that are in 

conflict with the policy choices that Congress made in the 

statutory text specifying the Court’s original jurisdiction.

II

This case involves a suit brought by two States against 

another State, and thus presents an opportunity for us to 

reevaluate our discretionary approach to our original 

jurisdiction.

 Federal law generally prohibits the manufacture, distribution, dispensing, and possession of marijuana. See

Controlled Substances Act (CSA), 84 Stat. 1242, as 

amended, 21 U. S. C. §§812(c), Schedule I(c)(10), 841–846

(2012 ed. and Supp. II). Emphasizing the breadth of the 

CSA, this Court has stated that the statute establishes “a 

comprehensive regime to combat the international and 

interstate traffic in illicit drugs.” Gonzales v. Raich, 545 

U. S. 1, 12 (2005). Despite the CSA’s broad prohibitions, 
4 NEBRASKA v. COLORADO

THOMAS, J., dissenting

in 2012 the State of Colorado adopted Amendment 64, 

which amends the State Constitution to legalize, regulate, 

and facilitate the recreational use of marijuana. See Colo. 

Const., Art. XVIII, §16. Amendment 64 exempts from 

Colorado’s criminal prohibitions certain uses of marijuana. 

§§16(3)(a), (c), (d); see Colo. Rev. Stat. §18–18–433 (2015). 

Amendment 64 directs the Colorado Department of Revenue to promulgate licensing procedures for marijuana 

establishments. Art. XVIII, §16(5)(a). And the amendment requires the Colorado General Assembly to enact an 

excise tax for sales of marijuana from cultivation facilities

to manufacturing facilities and retail stores. §16(5)(d).

In December 2014, Nebraska and Oklahoma filed in this 

Court a motion seeking leave to file a complaint against 

Colorado. The plaintiff States—which share borders with 

Colorado—allege that Amendment 64 affirmatively facilitates the violation and frustration of federal drug laws. 

See Complaint ¶¶54–65. They claim that Amendment 64 

has “increased trafficking and transportation of Coloradosourced marijuana” into their territories, requiring them

to expend significant “law enforcement, judicial system, 

and penal system resources” to combat the increased 

trafficking and transportation of marijuana. Id., ¶58; 

Brief [for Nebraska and Oklahoma] in Support of Motion 

for Leave to File Complaint 11–16. The plaintiff States

seek a declaratory judgment that the CSA pre-empts 

certain of Amendment 64’s licensing, regulation, and 

taxation provisions and an injunction barring their implementation. Complaint 28–29.

The complaint, on its face, presents a “controvers[y] 

between two or more States” that this Court alone has 

authority to adjudicate. 28 U. S. C. §1251(a). The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the 

merit of the plaintiff States’ claims, we should let this 

complaint proceed further rather than denying leave 
Cite as: 577 U. S. ____ (2016) 5 

THOMAS, J., dissenting

without so much as a word of explanation. 

* * * 

I respectfully dissent from the denial of the motion for 

leave to file a complaint.