Considering the Constitutionality of Nonstate Intervenors in Original Jurisdiction Actions

One of these things is not like the others, One of these things just doesn't belong, Can you tell which thing is not like the others By the time I finish my song? (1) INTRODUCTION It is not often that one begins to hum a familiar Sesame Street tune when reading Supreme Court opinions--but with Chief Justice John Roberts, you never know what you might get. His dissent in Alabama v. North Carolina (2) begins with a not-so-subtle jab, based on the children's game "One of these things is not like the others," that the question of allowing nonstate party intervenors in an original jurisdiction case in the Supreme Court should not have been a hard one. (3) But could the answer really be that simple? To address the question of intervenors, original jurisdiction itself must first be considered. Article III's language is familiar: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction." (4) However, as both a practical and statutory matter, "the Supreme Court [obviously] does not have original jurisdiction over every case in which a state is a party." (5) Rather than remaining completely open-ended concerning cases involving states, this jurisdiction has been limited by Congress (6) to (1) controversies between states, (2) controversies between the United States and a state (in response to the decision in United States v. Texas (7)), and (3) cases where a state sues the citizens of another state. (8) This also comports with the Court's understanding of its role. (9) Noticeably absent from this grouping of scenarios is the possibility of a citizen suing a state. Though Article III could encompass such jurisdiction, the Supreme Court has controversially determined that, once Chisholm was allowed to sue Georgia, (10) the ratification of the Eleventh Amendment (11) ensured that a citizen could not sue a state in federal court under any circumstances--let alone in an original action of the Supreme Court. (12) As it stands, the Supreme Court hears original jurisdiction actions on an almost purely discretionary basis. (13) Chief Justice Rehnquist highlighted, in Mississippi v. Louisiana, (14) the progression of the Court's model. (15) Originally, the Court used "discretion not to accept original actions in cases within [its] nonexclusive original jurisdiction, such as actions by States against citizens of other States and actions between the United States and a State. [The Court has] since carried over its exercise to actions between two States, where [its] jurisdiction is exclusive." (16) Though state vs. state jurisdiction is statutorily committed to the exclusive original jurisdiction of the Supreme Court, the litigants must still pass a two part test in order to be granted leave to file on the Court's original docket. (17) However, "[w]hatever the Court's intention to limit the scope and exercise of its original jurisdiction, under a theory of strict construction it cannot refuse to entertain cases falling within its original jurisdiction if no other forum is available." (18) One thing left open to the Supreme Court was the question of intervention by nonstate parties in these original jurisdiction cases. Intervention is "the procedural device whereby a stranger can present a claim or defense in a pending action or in a proceeding incidental thereto, and become a party for the purpose of the claim or defense presented." (19) While it is apparent that the founders did not envision citizens being able to haul states into federal court, (20) they were silent as to those citizens presenting claims or defenses in matters that were already before the Court. Given the common-law pleading regime persistent at the time of the founding and code-pleading afterward, this is not surprising. (21) It is only with the rise of the transactional model and its more liberal ideas of intervention and case management that these types of questions arise. …