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U.S. Supreme Court: Original Jurisdiction and Oral Arguments

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Some of the filings submitted to the United States Supreme Court in the original jurisdiction case Texas v. New Mexico and Colorado. Original Docket Number 141. Photo by Donna Sokol.

Today’s guest post is by Ann Hemmens, Senior Legal Reference Librarian.  Ann wrote on accessing federal materials on the Law Library’s Guide to Law Online.

At the Law Library of Congress, we collect, organize, and provide access to original print records and briefs filed with the Supreme Court of the United States. We are one of ten depository libraries throughout the United States that receive these briefs in paper. The types of documents submitted by the attorneys or parties (for those individuals representing themselves) include, for example, Petition for a Writ of Certiorari, Brief in Opposition, and Petition for Rehearing. Some documents are unique to original jurisdiction cases, such as Exceptions by Plaintiff to Report of Special Master, Brief Amicus Curiae in an Original Action at the Exceptions Stage, and Reply to Plaintiff’s Exceptions to Report of Special Master. The rules of the Court govern the style of the documents including word length and the color of document’s cover page.
In addition to reading the documents submitted to the Court, just as the justices do, anyone can visit the Court in person and listen to the oral arguments for the cases selected for argument. According to the Court,

[t]he arguments are an opportunity for the Justices to ask questions directly of the attorneys representing the parties to the case, and for the attorneys to highlight arguments that they view as particularly important.

A visitor can either attend the entire argument (the Court typically hears two one-hour arguments on a given day) or simply observe the court briefly in the “3 minute” line.
On a recent day off, I wanted to take the opportunity to experience an oral argument. In preparation for the visit, I reviewed the Court’s calendar of arguments and selected two original jurisdiction cases to be argued on January 8, 2018: Texas v. New Mexico and Colorado (Original No. 141) and Florida v. Georgia (Original No. 142).
Next I needed to learn about the cases, including what is “original jurisdiction”? Article III, Section 2, of the Constitution of the United States provides

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

For a history of this constitutional provision and cases interpreting it, see the Constitution of the United States of America: Analysis and Interpretation.  In Original Jurisdiction cases, the Court typically appoints a Special Master “to take evidence on factual issues” and “…reports and recommendations [of the Special Master] are advisory only and are subject to exceptions and objections by the parties. The Court itself determines all critical motions and grants or denies the ultimate relief sought.” Supreme Court Practice, 652-53 (10th ed. 2013).

To understand what the cases were about and what documents had been filed, I consulted the Court’s docket online (a chronological listing of all documents filed with the Court) which includes the “Questions Presented” for argument. The dockets for Original No. 141 and Original No. 142, both as dealing with water/irrigation rights between states. Where are the copies of the documents submitted to the court? In addition to finding these physical documents in the Law Library’s collections beginning on November 13, 2017, the Court began requiring attorneys to submit their petitions and other documents through a new electronic filing system, so you will find electronic copies of documents linked from the docket sheet for recent items. Other sources, such as SCOTUSblog, post most documents free online. For example, on the SCOTUSblog page for Original No. 141, you’ll find documents from 2013 to 2017. Documents filed with the special master are available through the court’s Special Master Reports Web Site.

The arguments themselves are interesting, even when the subject matter is unfamiliar. You will observe the justices asking questions of the attorneys, see how the attorneys respond, and learn that a justice might restate a colleague’s questions. Sometimes the justices present a question and the attorney does not immediately have an answer. In the Texas vs. New Mexico and Colorado case, the following exchange between Justice Gorsuch and Assistant Solicitor General O’Connell involved the issue of whether the Treaty with Mexico that ended the Mexican American War was self-executing

JUSTICE GORSUCH: Ms. O’Connell, one

of the federal interests you’ve asserted is the

treaty with Mexico. And I’m curious how it

interacts with this Court’s decision in

Medellin, where this Court distinguished

between self-executing treaties and treaties

that aren’t self-executing.

Is the treaty here self-executing?

And if it’s not, then how is it a federal

interest to seek a binding enforceable judgment

on the basis in domestic law of a treaty that

isn’t enforceable under domestic law?

MS. O’CONNELL: I am not sure. I have

not — the State Department was not included in

our, you know, our — our corroboration in this

case, so I don’t — I actually don’t know the

answer to whether it’s a self-executing treaty.

It was enacted in the public laws -­

(page 15 of the transcript of oral arguments)

Oral argument is a serious event, but there can still be laughter in the courtroom. For example, in the Florida v. Georgia case, regarding equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin, Justice Breyer asked about distributing a teaspoon of water; that produced a bit of laughter (see pages 31-33 of the transcript).
The Library collects the print transcripts of oral arguments. If you would like to hear audio of the oral arguments (including the laughter), visit the Oyez Project website, and search by case name.
For more information on this collection of records and briefs as well as oral argument transcripts, available at the Library, see our guide Resources for Locating Records & Briefs of the U.S. Supreme Court.

Additional blog posts on records and briefs at the Law Library of Congress:

Your Place for Supreme Court Records & Briefs – Pic of the Week (February 3, 2017)(Betty Lupinacci)
A New Volume of U.S. Supreme Court Records and Briefs at the Law Library of Congress (April 26, 2012)(Margaret Wood)
Finding U.S. Supreme Court Records and Briefs (November 18, 2010)(Christine Sellers)

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