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ALITO, 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.

 JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting from denial of motion for leave to file complaint. 

Suppose the following occurred. A Texan and a Californian 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 jurisdiction 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 Framers 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 complaint not be accepted for filing.” 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, 817 
 

2 TEXAS v. CALIFORNIA 

ALITO, J., dissenting 

(1976); see also, e.g., Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 572 U. S. 118, 126 (2014); Sprint Communications, Inc. v. Jacobs, 571 U. S. 69, 77 (2013). We 

might emphasize that federal courts do not have freewheeling discretion to spurn categories 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 “original 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 entertain 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 jurisdiction no longer seems as important as it was when the 

Constitution was adopted, and that a proliferation of original 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—particularly 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 exclusive, the State is left without any judicial forum. Cf. Franchise 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—claiming the discretion to refuse to entertain Texas’s suit—is consistent with a practice the Court has followed for the past 

45 years. But in all that time, the Court has never provided 
Cite as: 593 U. S. ____ (2021) 3 

ALITO, J., dissenting 

a convincing justification for the practice. In Cohens v. Virginia, 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 Communications, 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. Instances 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] certiorari jurisdiction over appellate 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; Stevenson, Exclusive Original Jurisdiction of the United States 

—————— 1The Court did not accept every case filed during that period, of

course—it rejected some for lack of standing and on account of other justiciability defects. See, e.g., Louisiana v. Texas, 176 U. S. 1, 24 (1900) 

(Harlan, J., concurring in result) (arguing Article III did not bestow jurisdiction over cases testing the constitutionality of “local statutes or regulations that do not affect the property or the powers of the complaining 

State in its sovereign or corporate capacity”); see generally Stern & 
 

4 TEXAS v. CALIFORNIA 

ALITO, 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 original jurisdiction appeared 

in Louisiana v. Texas, 176 U. S. 1 (1900). There, the Court 

held that the case did not actually constitute a dispute between 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 that 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 practice, 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 inheritance taxes on securities

held in trusts that had been created by a Massachusetts decedent but were administered in Missouri by Missouri trustees. 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 not fall within the Court’s exclusive 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 nonexclusive 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 obligated 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 within its jurisdiction when the

suit may be brought in another forum; that the suit at hand 

was not necessary for Massachusetts’s “protection” because 

Massachusetts could apparently bring its suit in a Missouri 

—————— 

Gressman 622–634. 
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ALITO, J., dissenting 

court; and that entertaining suits like this one would potentially impose an “enormous burden” and “might seriously 

interfere with the discharge by th[e] Court of its duty in deciding 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 declining to exercise its non-exclusive original jurisdiction. The Court acknowledged that

“it may initially have been contemplated that this Court 

would always exercise its original jurisdiction when 

properly called upon to do so.” Id., at 497. But the Court 

opined that changes in the American legal system had rendered that view “untenable, as a practical matter.” Ibid. 

“What gives rise to the necessity for recognizing [the] discretion” to decline to entertain original-jurisdiction cases,

the Court explained, was “pre-eminently the diminished societal concern in our function as a court of original jurisdiction 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 exercise the same discretion in cases within its exclusive original 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 justification for this assertion. In the next sentence, the Court 

noted that an important factor 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 jurisdiction. And in the final 

sentence devoted to the subject, the Court gave this explanation: “We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket

will not suffer.” Id., at 93–94. 

The dicta in Illinois v. Milwaukee became a holding in 
 

6 TEXAS v. CALIFORNIA 

ALITO, 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 litigate in any other federal court, the Court justified its decision 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 exercise its exclusive original jurisdiction in state-versusstate cases, relying on the rationales provided in these earlier 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 question whether we really have discretion 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., dissenting); Louisiana, 488 U. S., at 990 (White, J., dissenting); Nebraska v. Colorado, 577 U. S. 1211 (2016) (THOMAS, J., 

joined by ALITO, 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 questionable, and that is especially true when, as in this case, our 

original jurisdictional is exclusive. As the history recounted

above reveals, the Court adopted this practice without ever

providing a convincing justification. The principal reason 
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ALITO, J., dissenting 

provided—that entertaining all 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 disputes 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 happen 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 appeals, the federal district courts, and the state courts, we

are not tied to any region or State and were therefore entrusted 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 populous States. In 2016, the California Legislature enacted a 

law, AB 1887, that prohibits state-funded or state-sponsored 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 

ALITO, J., dissenting 

olina, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas. According to press releases issued by California 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 coverage for gender-reassignment surgery. See California Will 

Restrict State-Funded and State-Sponsored Travel 

to Iowa (Sept. 13, 2019), https://oag.ca.gov/news/pressreleases/attorney-general-becerra -california-will-restrictstate-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 antidiscrimination ordinances. See North Carolina Remains on List of Restricted States (Apr. 12, 2017), https://oag.ca.gov/news/

press-releases/attorney-general-xavier-becerra-north-carolinaremains-list-restricted-states. Several of the States placed

on California’s list have retaliated by imposing similar restrictions on state-funded or state-sponsored travel to California. See Press Release, Office of Okla. Governor, Stitt 

Issues Executive Order Banning State-Funded Travel to 

California (Jan. 23, 2020), https://www.governor.ok.gov/

articles/press_releases/stitt-issues-executive-order-banning-

—————— 2See California Will Restrict State-Funded and State-Sponsored

Travel to South Carolina (Apr. 2, 2019), https://oag.ca.gov/news/pressreleases/attorney-general-becerra-california-will- restrict - state -fundedand-state-0; California Will Restrict State-Funded and State-Sponsored

Travel to Oklahoma (June 1, 2018), https://oag.ca.gov/news/pressreleases /attorney-general-becerra-california-will-restrict-state-fundedand-state; Alabama, Kentucky, South Dakota and Texas Added to List 

of Restricted State Travel (June 22, 2017), https://oag.ca.gov/news/pressreleases/attorney-general-becerra-alabama-kentucky-south-dakota-andtexas-added-list; Cal. Dept. of Justice, Frequently Asked Questions

(FAQs)—AB 1887: Why Are the States on the Travel Prohibition List?, 

https://www.oag.ca.gov/ab1887/faqs (citing Kansas, Mississippi, and

Tennessee laws). 
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ALITO, J., dissenting 

state-funded-; A. Sher, Legislators Strike Back at California Ban on State-Funded Travel to Volunteer State, Chattanooga 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 for 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 Complaint 15 (quoting Texas v. New Mexico, 462 U. S., at 571, 

n. 18; first alteration in original). Texas notes that economic 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 economic 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 independent nations today, it is entirely possible that their dispute would be the source of considerable international tension. 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 sovereign power that they once possessed, see Franchise Tax 

Bd., 587 U. S., at ___–___ (slip op., at 13–15), but they acquired 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 understanding of our exclusive original jurisdiction should be 

reexamined. At a minimum, we should note probable jurisdiction and receive briefing and argument on the question. 
 

10 TEXAS v. CALIFORNIA 

ALITO, J., dissenting 

Texas raises novel constitutional claims, arguing that California’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.