1 Cite as: 593 U. S. ____ (2021)

A LITO , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

TEXAS v. CALIFORNIA

ON MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT
No. 153, Orig. Decided April 26, 2021
The motion for leave to file a bill of complaint is denied.
J USTICE A LITO , with whom J USTICE T HOMAS joins, dis

senting from denial of motion for leave to file complaint. Suppose the following occurred. A Texan and a Califor

nian are involved in a traffic accident in California. The Texan tries to sue the Californian in federal district court and invokes the “diversity” jurisdiction conferred by 28 U. S. C. §1332(a)(1), which provides that “[t]he district courts shall have original jurisdi ction of all civil actions .

. . between . . . citizens of different States” where the amount in controversy exceeds $75,000. Suppose the district court refuses to allow the filing of the complaint and explains: “I know that the Constitution and a federal statute give me jurisdiction over diversity cases, and I know that the Fram

ers of the Constitution and the Congress that enacted the statute thought that diversity jurisdiction was important because it provides a neutral forum for out-of-state parties. But in my opinion, that’s not really so important anymore, and if I have to handle diversity suits, I won’t have the time I need to deal with more important matters. Therefore, in the exercise of my discretion, I am ordering that the com

plaint not be accepted for filin g.” Suppose a court of appeals affirmed this decision and the case came before us. What would we do? We would reverse in the blink of an eye. We might also wag a finger at the lower courts and remind them that a federal court’s obligation to hear and decide cases within its jurisdiction is “virtually unflagging.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 8172 TEXAS v. CALIFORNIA

A LITO , J., dissenting (1976); see also, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc. , 572 U. S. 118, 126 (2014); Sprint Com

munications, Inc. v. Jacobs , 571 U. S. 69, 77 (2013). We might emphasize that federal courts do not have freewheel

ing discretion to spurn categori es of cases that they don’t like. If this is how we would respond to this imaginary Texan versus Californian tort suit, how can we refuse to allow the filing of the complaint in this case? The State of Texas wishes to sue the State of California and invokes our “orig

inal and exclusive jurisdiction of all controversies between two or more States.” 28 U. S. C. §1251(a); see also U. S. Const., Art. III, §2, cl. 2. Can we justify our refusal to en

tertain Texas’s suit on essentially the same ground that we would reject out of hand in the hypothetical diversity case just described, that is, on the ground that our original juris

diction no longer seems as important as it was when the Constitution was adopted, and that a proliferation of origi

nal cases would crowd out more important matters on our appellate docket? See Illinois v. Milwaukee , 406 U. S. 91, 93–94 (1972); Ohio v. Wyandotte Chemicals Corp. , 401 U. S. 493, 497–499 (1971). It is not easy to see how the refusal to entertain Texas’s suit can be justified on that ground—par

ticularly since our rejection of Texas’s complaint leaves the State in a more difficult position than our imaginary Texas motorist. That person could at least file suit in a state court, but if our jurisdiction under §1251(a) is truly exclu

sive, the State is left without any judicial forum. Cf. Fran

chise Tax Bd. of Cal. v. Hyatt , 587 U. S. ___, ___ (2019) (slip op., at 13) (noting “inability of one State to hale another into its courts without the latter’s consent”). In fairness to the Court, what it does in this case—claim

ing the discretion to refuse to entertain Texas’s suit—is con

sistent with a practice the Court has followed for the past 45 years. But in all that time , the Court has never provided3 Cite as: 593 U. S. ____ (2021)

A LITO , J., dissenting a convincing justification for the practice. In Cohens v. Vir

ginia , 6 Wheat. 264 (1821), Chief Justice Marshall’s opinion for the Court famously proclaimed: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” Id., at 404. The Court has stepped back a bit from this categorical pronouncement—but only a bit. See, e.g ., Sprint Commu

nications, Inc. , 571 U. S., at 77. The Court has repeatedly stressed that a federal court is almost always obligated to entertain a case over which it has jurisdiction. Ibid . In

stances in which this is not required are the rare exception. The Court’s practice regarding original jurisdiction cases, however, has expanded far beyond anything that might be called an exception. Indeed, commentators have written that the practice has made our original jurisdiction “ ‘almost as discretionary as [our] certi orari jurisdiction over appel

late cases.’ ” S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice 639 (10th ed. 2013) (hereinafter Stern & Gressman).

I How did the Court come to adopt a practice that seems so inconsistent with the principle the Cohens Court thought self-evident? Like many a questionable habit, the practice developed incrementally. For the first 150 years after the adoption of the Constitution, the Court never refused to permit the filing of a complaint in a case falling within its original jurisdiction. 1 See Stern & Gressman 634; Steven

son, Exclusive Original Jurisdiction of the United States

——————

1 The Court did not accept every case filed during that period, of course—it rejected some for lack of standing and on account of other jus

ticiability defects. See, e.g., Louisiana v. Texas , 176 U. S. 1, 24 (1900) (Harlan, J., concurring in result) (a rguing Article III did not bestow ju

risdiction over cases testing the consti tutionality of “local statutes or reg

ulations that do not affect the proper ty or the powers of the complaining State in its sovereign or corporat e capacity”); see generally Stern &4 TEXAS v. CALIFORNIA

A LITO , J., dissenting Supreme Court: Does it Still Exist? 1982 B. Y. U. L. Rev. 727, 729. The first whisper of the notion that the Court might decline to exercise its or iginal jurisdiction appeared in Louisiana v. Texas , 176 U. S. 1 (1900). There, the Court held that the case did not actually constitute a dispute be

tween two States, but it added that the Court’s jurisdiction to hear such suits “is of so delicate and grave a character that it was not contemplated t hat it would be exercised save when the necessity was absolute.” Id ., at 15. Another 39 years would go by before the Court took the next step toward its current pr actice, and when it took that step, it did so in a roundabout way. In Massachusetts v. Missouri , 308 U. S. 1 (1939), the dispute concerned the two States’ right to impose state i nheritance taxes on securities held in trusts that had been created by a Massachusetts de

cedent but were administered in Missouri by Missouri trus

tees. Noting that there were ample funds in the trusts to pay the taxes imposed by both States, the Court first held the dispute was not really between two States and that therefore the controversy did no t fall within the Court’s ex

clusive original jurisdiction. Id., at 15–17. The Court then turned to Massachusetts’s fallback argument that its claim could be understood as one against Missouri citizens and that therefore the claim at least fell within the Court’s non

exclusive original jurisdiction over cases between a State and a citizen of another State. The Court expressed doubt that the bill could be read to assert such a claim and only then turned to the question whether the Court would be ob

ligated to entertain the claim if the bill could be interpreted that way. The Court observed that a court is not always required to entertain a suit with in its jurisdiction when the suit may be brought in another forum; that the suit at hand was not necessary for Massachus etts’s “protection” because Massachusetts could apparently bring its suit in a Missouri

—————— Gressman 622–634.5 Cite as: 593 U. S. ____ (2021)

A LITO , J., dissenting court; and that entertaining suits like this one would poten

tially impose an “enormous burden” and “might seriously interfere with the discharge by th[e] Court of its duty in de

ciding cases and controversies appropriately brought before it.” Id., at 18–19. In Wyandotte Chemicals Corp. , 401 U. S. 493, the Court returned to the question of dec lining to exercise its non-ex

clusive original jurisdiction. The Court acknowledged that “it may initially have been contemplated that this Court would always exercise its or iginal jurisdiction when properly called upon to do so.” Id ., at 497. But the Court opined that changes in the American legal system had ren

dered that view “untenable, as a practical matter.” Ibid

. “What gives rise to the necessi ty for recognizing [the] dis

cretion” to decline to entertain original-jurisdiction cases, the Court explained, was “pre-eminently the diminished so

cietal concern in our function as a court of original jurisdic

tion and the enhanced importance of our role as the final federal appellate court.” Id ., at 499. The next year, the Court said in dicta that it would exer

cise the same discretion in cases within its exclusive origi

nal jurisdiction: “We construe 28 U. S. C. §1251(a)(1), as we do Art. III, §2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases.” Illinois v. Milwaukee , 406 U. S., at 93. The Court provided little jus

tification for this assertion. In the next sentence, the Court noted that an important facto r in determining whether a case is “appropriate” is “the availability of another forum where there is jurisdiction over the named parties,” ibid.
, but it is hard to see how this factor has a bearing on the refusal to exercise exclusive ju risdiction. And in the final sentence devoted to the subje ct, the Court gave this expla

nation: “We incline to a sparing use of our original jurisdic

tion so that our increasing duti es with the appellate docket will not suffer.” Id., at 93–94. The dicta in Illinois v. Milwaukee became a holding in6 TEXAS v. CALIFORNIA

A LITO , J., dissenting

Arizona v. New Mexico , 425 U. S. 794 (1976) ( per curiam ), where, for the first time, the Court declined to exercise its exclusive jurisdiction in a controversy between two States. See id ., at 796–797. While the state parties could not liti

gate in any other federal court, the Court justified its deci

sion by observing that the “ issues tendered” were already being litigated in a pending state-court action. Id ., at 797. Since that time, the Court has repeatedly declined to ex

ercise its exclusive original jurisdiction in state-versus

state cases, relying on the rationales provided in these ear

lier decisions. See, e.g., Wyoming v. Oklahoma , 502 U. S. 437 (1992); Louisiana v. Mississippi , 488 U. S. 990 (1988); Texas v. New Mexico , 462 U. S. 554 (1983); California v. Texas , 457 U. S. 164 (1982) ( per curiam ). Justices have written separately to questio n whether we really have dis

cretion to decline to hear such cases. See Arizona , 425 U. S., at 798–799 (Stevens, J., concurring); California v. West Virginia , 454 U. S. 1027 (1981) (Stevens, J., dissent

ing); Louisiana , 488 U. S., at 990 (White, J., dissenting); Ne

braska v. Colorado , 577 U. S. 1211 (2016) (T HOMAS , J., joined by A LITO , J., dissenting); Arizona v. California , 589 U. S. ___ (2020) (same). And scholars have criticized the practice. See, e.g., R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 275 (7th ed. 2015); Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 561, 576 (1985); Stevenson, 1982 B. Y. U. L. Rev.

, at 747–748. But the Court has not relented.

II The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is question

able, and that is especially true when, as in this case, our original jurisdictional is exclus ive. As the history recounted above reveals, the Court adopted this practice without ever providing a convincing justification. The principal reason7 Cite as: 593 U. S. ____ (2021)

A LITO , J., dissenting provided—that entertaining a ll suits between two States would crowd out consideration of more important matters on our appellate docket—rests on a dubious factual premise and, in any event, is essentially indistinguishable from the justification given by the imaginary district court judge with a distaste for diversity cases. And the suggestion in Louisiana v. Texas , 176 U. S., at 15, that we should hesitate to entertain suits between two States because they are of a “delicate and grave” character seems exactly backwards. It is precisely because these di sputes have a “delicate and grave” character that they were placed exclusively in our hands. See The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (“In cases in which a State might hap

pen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal”); California v. Arizona , 440 U. S. 59, 65–66 (1979). Unlike the regional courts of ap

peals, the federal district courts, and the state courts, we are not tied to any region or State and were therefore en

trusted with the responsibility of adjudicating cases where the suspicion of local bias may run high. Cf. The Federalist No. 80 (A. Hamilton); Chisholm v. Georgia , 2 Dall. 419, 475 (1793). The present case is just such a suit.

III This case involves a dispute between our two most popu

lous States. In 2016, the California Legislature enacted a law, AB 1887, that prohibits state-funded or state-spon

sored travel to any State whose laws fail to meet specified standards regarding discrimination on the basis of sexual orientation, gender identity, or gender expression. See Cal. Govt. Code Ann. §11139.8 (West). The law authorizes the California attorney general to identify States that should be subject to the ban, §11139.8(e)(1), and as of the date of the filing of Texas’s motion, 11 States had been targeted: Alabama, Iowa, Kansas, Kentucky, Mississippi, North Car

-8 TEXAS v. CALIFORNIA

A LITO , J., dissenting olina, Oklahoma, South Carolina, South Dakota, Tennes

see, and Texas. According to press releases issued by Cali

fornia Attorney General Becerra and the State’s website, 9 of the 11 States were subjected to the ban because of laws or practices designed to protect religious liberty. 2 Iowa was placed on the list because it won’t provide Medicaid cover

age for gender-reassignment surgery. See California Will Restrict State-Funded and State-Sponsored Travel to Iowa (Sept. 13, 2019), https://oag.ca.gov/news/press

releases/attorney-general

- becerra

- california

- will -restrict

state-funded-and-state-1. Travel to North Carolina was banned because the State enacted a law requiring state agencies to maintain separate-sex bathrooms and changing facilities and that prohibited certain local antidiscrimina

tion ordinances. See North Carolina Remains on List of Re

stricted States (Apr. 12, 2017), https://oag.ca.gov/news/ press-releases/attorney-gen eral-xavier-becerra-north- carolina

remains-list-restricted-states. Several of the States placed on California’s list have retaliated by imposing similar re

strictions on state-funded or state-sponsored travel to Cali

fornia. See Press Release, Office of Okla. Governor, Stitt Issues Executive Order Banning State-Funded Travel to California (Jan. 23, 2020), h ttps://www.governor.ok.gov / articles/press_releases/stitt-issues-executive-order- banning

-

——————

2 See California Will Restrict State-Funded and State-Sponsored Travel to South Carolina (Apr. 2, 2019), https://oag.ca.gov/news/press

releases/attorney-general -becerra-california-will- restrict

- state

- funded

and-state-0; California Will Restrict State-Funded and State-Sponsored Travel to Oklahoma (June 1, 2018)

, https://oag.ca.gov/news/press

releases / attorney

- general

- becerra-california-will- restrict-state-funded

and-state; Alabama, Kentucky, South Dakota and Texas Added to List of Restricted State Travel (June 22, 2017), https://oag.ca.gov/news/press

releases/attorney-general-becerra-alabama-kentucky-south-dakota-and

texas-added-list; Cal. Dept. of Ju stice, Frequently Asked Questions (FAQs)—AB 1887: Why Are the States on the Travel Prohibition List?, https://www.oag.ca.gov/ab1887/faqs (c iting Kansas, Mississippi, and Tennessee laws).9 Cite as: 593 U. S. ____ (2021)

A LITO , J., dissenting state-funded-; A. Sher, Legislators Strike Back at Califor

nia Ban on State-Funded Travel to Volunteer State, Chat

tanooga Times Free Press, Mar. 16, 2018, 2018 WLNR 8221967. In seeking to file its complaint, Texas argues that this is precisely the type of dispute fo r which our exclusive original jurisdiction was designed. Texas writes that “ ‘the model case for [the] invocation of [our] original jurisdiction is a dispute between States of such seriousness that it would
amount to casus belli if the States were fully sovereign.’ ” Brief in Support of Motion for Leave To File Bill of Com

plaint 15 (quoting Texas v. New Mexico , 462 U. S., at 571,

n. 18; first alteration in original). Texas notes that eco

nomic sanctions have often roiled international relations and have sometimes led to war. Brief in Support of Motion, 15–18. And Texas reminds us that the Founders were well aware of the danger of econom ic warfare between States. See id., at 15–16 (citing The Federalist No. 7 (A. Hamilton)). The Republic of Texas was an independent nation for 10 years (1836–1846), and the California Republic claimed a similar status for a brief time in 1846. If they were inde

pendent nations today, it is entirely possible that their dis

pute would be the source of considerable international ten

sion. As sovereign nations, they might resolve their dispute by diplomacy, by submitting it to international arbitration, or by self-help measures. When they entered the Union, these two behemoths relinquished the full measure of sov

ereign power that they once possessed, see Franchise Tax Bd. , 587 U. S., at ___–___ (slip op., at 13–15), but they ac

quired the right to have their disputes with other States adjudicated by the Nation’s highest court. The Court now denies Texas that right. It will not even permit the filing of Texas’s bill of complaint. This under

standing of our exclusive original jurisdiction should be reexamined. At a minimum, we should note probable juris

diction and receive briefing and argument on the question.10 TEXAS v. CALIFORNIA

A LITO , J., dissenting

Texas raises novel constitutio nal claims, arguing that Cal

ifornia’s travel ban violates the Privileges and Immunities Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce Clause, Art. I, §8, cl. 3, and the Equal Protection Clause, Amdt. 14, §1. I express no view regarding any of those claims, but I respectfully dissent from the Court’s refusal even to permit the filing of Texas’s complaint.