230. Florida v. California

Justices Thomas and Alito have been (mostly) consistent in arguing that the Court *must* hear disputes between two or more states. Florida v. California is a good example of why I remain unpersuaded.

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The Court made quite a bit of news last week, and we’ll cover all of it below. But one of the rulings that received relatively fewer headlines was last Tuesday’s “denial of leave to file an original bill of complaint” (i.e., a refusal to exercise “original” jurisdiction) in a case with the intriguing caption Florida v. California. The lawsuit arose out of accusations Florida leveled against California and Washington of violating federal safety and immigration laws by issuing CDLs to individuals who are not U.S. citizens or lawful permanent residents and who allegedly lack English proficiency. Even though the Supreme Court’s jurisdiction in such cases is both “original” (meaning cases start in the Supreme Court) and “exclusive” (meaning no other court can hear such a case), the justices refused to take up the dispute—prompting a dissent by Justice Thomas that was joined by Justice Alito.

I’ve written before about the debate over what is sometimes known (among the three people who follow this stuff) as the “Wyandotte doctrine”—the idea that the Supreme Court can exercise the same discretion to decline to hear original jurisdiction cases that it exercises over (almost all of) its appellate docket. Indeed, it’s been 50 years since the Supreme Court first held that it did not have to hear a lawsuit just because there are states on both sides. My own view has always been that this is a perfectly valid interpretation of Article III of the Constitution and a reasonable (if not self-evident) interpretation of the relevant statute, 28 U.S.C. § 1251(a). But I wanted to use this most recent case to illustrate the biggest reason why I think such discretion is a good thing—because of what it would mean for the Court’s docket, and how it would look, if the justices couldn’t duck politically charged cases like Florida.

More on that below. But first, the (rest of the) news.

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On the Docket

The Merits Docket

The Court handed down four decisions in argued cases on Thursday:

1. In Rutherford v. United States, the Court addressed whether a district court may treat the non‑retroactive sentencing changes Congress made to 18 U.S.C. § 924(c) in the First Step Act of 2018 as an “extraordinary and compelling reason” under 18 U.S.C. § 3582(c)(1)(A)(i) to support the compassionate release of those sentenced prior to the statute’s enactment (that is, those who would have benefitted from the new rule had it applied retroactively). Writing for the “usual” 6-3 majority, Justice Barrett held that the sentencing disparity created by Congress’s non‑retroactive change cannot serve as an extraordinary and compelling reason warranting a sentence reduction. Justice Sotomayor filed a dissent, joined by Justices Kagan and Jackson, arguing that Congress gave the Sentencing Commission discretion to decide what counts as “extraordinary and compelling reasons” for a sentence reduction, and that the Commission’s choice to count such a disparity as one was well within the discretion Congress had given to it, and should’ve been left alone.

2. In Fernandez v. United States, a companion case to Rutherford, Justice Barrett also held (again, writing for all six Republican appointees) that doubts about the legal validity of a conviction or sentence can never qualify as “extraordinary and compelling reasons” supporting compassionate release under § 3582(c)(1)(A)(i). Instead, challenges “close to the core of habeas corpus” must be brought under the federal habeas statute—and cannot be repackaged as compassionate‑release motions. Justice Sotomayor, joined by Justice Kagan, concurred in the judgment because she agreed that Fernandez’s appeal should fail. But she criticized the majority for deciding more than necessary, and for grafting a “complex habeas analysis” onto the compassionate‑release framework. And Justice Jackson filed a solo dissent arguing that nothing in the compassionate release statute categorically bars second‑look relief based on previously considered facts, even if those might also be appropriate for habeas relief. The ideological split in both cases is, alas, telling—including for what it says about Justices Gorsuch and Barrett (who are often portrayed as more sympathetic to criminal defendants than the case law generally suggests).

3. Speaking of Justices Gorsuch and Barrett, Pitchford v. Cain involved a Mississippi capital defendant’s challenge under Batson v. Kentucky to the prosecution’s peremptory strikes of four Black jurors, where the trial court skipped Batson’s third step and gave defense counsel no opportunity to rebut the prosecutor’s race‑neutral explanations. By a 5‑4 vote, the Court—in an opinion by Justice Kavanaugh, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Jackson—held that the Mississippi Supreme Court unreasonably applied Batson in concluding that Pitchford had waived his rebuttal rights, and granted federal post-conviction habeas relief to the death‑row inmate. (Once again, Batson appears to be the one criminal justice issue on which Justice Kavanaugh tends to vote with the Democratic appointees.) Justice Gorsuch wrote the dissent, joined by Justices Thomas, Alito, and Barrett. Again, what I find striking about the outcome here aren’t the votes of the Chief Justice and Justice Kavanaugh in favor of a death-row inmate, but the fact that Gorsuch and Barrett both dissented in such a clear-cut Batson case.

4. Finally, Flowers Foods, Inc. v. Brock concerned the scope of the Federal Arbitration Act’s exemption for “workers engaged in foreign or interstate commerce,” as applied to “last‑mile” distributors who deliver baked goods locally after the products have moved in interstate commerce. In an opinion by Justice Gorsuch, the Court unanimously validated the arbitration exemption for the last‑mile drivers, holding that they fall within § 1’s transportation‑worker carve‑out and therefore cannot be compelled to arbitrate under the FAA.

For those scoring at home, Thursday’s quartet brings the total number of rulings in argued cases this term to 32, crossing the halfway mark (we expect ~25 more before the justices rise for their summer recess at the end of this month).

The other big ruling on last Tuesday’s Order List was the Court’s summary reversal of the Fourth Circuit in Margolin v. National Association of Immigration Judges. Margolin arose from an October 2021 Executive Office for Immigration Review policy requiring immigration judges to obtain supervisory approval before giving public speeches relating to their official duties, which the National Association of Immigration Judges (NAIJ) challenged on First and Fifth Amendment grounds in the Eastern District of Virginia. But the real fight was over where the NAIJ’s claims have to be litigated. Under the Civil Service Reform Act of 1978 (CSRA), most federal-employee workplace grievances must be channeled to the Merit Systems Protection Board (MSPB) and the Office of Special Counsel in the first instance (with appeals to the Federal Circuit), rather than litigated in district court. The district court dismissed on that basis, but the Fourth Circuit vacated and remanded for fact-finding on whether the CSRA scheme was still “functioning as Congress intended” given the Trump administration’s removals of the Special Counsel and MSPB members and the resulting loss of a quorum.

In an unsigned “per curiam” opinion, the Court summarily reversed, holding that the Fourth Circuit violated the principle of party presentation by deciding the case on a theory neither party had raised, briefed, or argued, and reiterating that federal courts are “essentially passive instruments” that must “decide only the questions presented” and are not “roving commissions . . . licensed to ‘sally forth each day looking for wrongs to right.’” I’ve written before about the Court’s frustratingly selective adherence to this principle, and this strikes me as another example—where relying upon it mostly just allowed the Court to duck a messier question on the merits (i.e., whether the evisceration of the MSPB and its lack of a quorum should bear upon the ability of district courts to hear challenges like NAIJ’s).

On those merits, Justice Thomas, joined by Justice Barrett, wrote separately to disagree with the Fourth Circuit. As Thomas argued, “[n]either the President’s view that he can remove federal executive officials, nor his having done so, change the meaning of the statute or the binding nature of this Court’s interpretation of it.” Perhaps failing to appreciate the tension with Justice Alito’s majority opinion in Callais, Thomas wrote that courts cannot “rewrite the statutory scheme” to anticipate possible invalidation of removal protections, because “[s]tatutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress’s purposes.”

To me, the significance of Margolin isn’t what Thomas wrote; it’s that Justice Barrett joined it. There is a lot of ongoing litigation arising out of alleged violations of civil service protections by the Trump administration. It’s hard to read Barrett’s very public vote here as anything other than a signal that she thinks the lion’s share of those claims have to go through the (not-exactly-functioning) MSPB process. Given the importance of her vote if and when this issue reaches the Court as part of a plenary appeal, where the issue is likely to divide the justices quite sharply, that’s an ominous sign, in my view.

The Emergency Docket

There were no full Court rulings on emergency applications last week. But we expect a significant ruling as early as today—with three emergency applications from Alabama asking the justices to clear the way (again) for Alabama to use a congressional district map that a three-judge district court held to violate not just the Voting Rights Act, but the Constitution itself, on the ground that it reflects intentional racial discrimination. Readers may recall that just three weeks ago (on May 11), the Court issued a “GVR” in these same cases—vacating the district court’s injunctions and ordering the court to reconsider in light of Callais, over a sharp dissenting opinion by Justice Sotomayor that was joined by Justices Kagan and Jackson. Well, the district court did just that—and issued a 102-page ruling on Tuesday that restored its original injunctions (with some relatively direct words for the Supreme Court, along the way).

Now, Alabama is asking the justices for a stay under (you guessed it) Purcell. Just to underline the sequencing here, the original district court injunctions were not issued too close to the election. The only reason why things got messed up was because of the Supreme Court’s intervention on May 11—intervention that, as Justice Sotomayor’s dissent made clear, should itself have been foreclosed by Purcell. For the Court to turn around now and invoke Purcell to allow Alabama to use a racially gerrymandered map, when it ran right over Purcell 21 days ago to wipe away a lower-court ruling blocking that map, would, in my view, only further exacerbate the appearance that the justices are playing partisan politics in these cases. That doesn’t mean that it won’t happen, alas.

The Week Ahead

Besides a ruling on the Alabama applications, we expect more decisions in argued cases this Thursday at 10:00 ET. As noted above, there are 25 rulings in argued merits cases still to come (plus the Trump v. Cook emergency application, which was argued in January). Both the process of elimination and the timing are making it increasingly likely that we’ll start getting some of the “big” rulings of the term sooner, rather than later.

Miscellaneous

Finally, I’ll be offline this morning because I’ll be arguing before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (Clement, Southwick, & Engelhardt, JJ.). I represent the appellants in Gonzalez Maldonado v. Standard Aero (San Antonio), Inc., a tort suit arising out of a 2018 military plane crash in which the district court granted summary judgment to Standard Aero based upon the government contractor defense the Supreme Court articulated in Boyle v. United Technologies Corp. We’re asking the Fifth Circuit to reverse and remand for further proceedings. (For those who are curious, I’ll link to the briefs and to the oral argument live-stream in the footnote at the end of this parenthetical.)¹

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The One First “Long Read”: The Ongoing Debate Over Discretion on the Original Docket

On August 12, 2025, Harjinder Singh, an Indian national who Florida alleges crossed the Mexican border without authorization, attempted a U-turn across the median of the Florida Turnpike, swinging his tractor-trailer across both lanes of traffic and killing all three passengers in a minivan that could not avoid the wreck. Singh held a non-domiciled commercial driver’s license (CDL) issued by California and had previously been licensed in Washington, and post-crash testing by the Federal Motor Carrier Safety Administration (FMCSA) indicated he could identify only one of four highway signs. Following the crash, Florida Attorney General James Uthmeier invoked the Supreme Court’s original jurisdiction and moved for leave to file a bill of complaint against California and Washington, alleging that those states’ CDL practices are preempted by federal safety and immigration law and constitute a public nuisance because commercial drivers routinely cross state lines. Florida sought an injunction barring the two states from issuing CDLs to applicants who are not U.S. citizens or lawful permanent residents and who do not meet federal safety requirements.

As part of its regular Order List last Tuesday, the Supreme Court denied Florida’s motion for leave to file the bill of complaint, leaving California’s and Washington’s existing licensing practices intact. California had urged the Court to reject Florida’s filing as “patently meritless,” explaining that its Department of Motor Vehicles verifies legal presence through the federal SAVE database and tests for English proficiency before issuing non-domiciled CDLs. Washington characterized the suit as a “political stunt” announced on Fox News and argued that the dispute “is not about boundaries or water” but “about the wisdom of state policies”—precisely the kind of policy disagreement the Court’s original jurisdiction is not designed to resolve.

Only Justices Thomas and Alito publicly dissented—advancing a procedural argument both justices have been making for some time. Specifically, Thomas and Alito have long maintained that the Court lacks the discretion to decline to hear cases between two or more states—on the ground that Congress, at least, has made the Court’s jurisdiction in such cases “exclusive.” Thus, the logic goes, why would Congress have given the Court discretion to not hear a lawsuit that no other court in the country can hear?

Even under the Court’s existing discretionary framework, Thomas also argued that Florida’s complaint warranted leave to file. Stressing the “seriousness and dignity” of the claim and the lack of “availability of an alternative forum,” Thomas reasoned that Florida’s claims qualified as a “model case” because the dispute “would amount to casus belli if the States were fully sovereign,” analogizing California’s and Washington’s (alleged) licensing practices to “one nation sending dangerous people into another.” (I’ll come back to the “facts” below.)

On the second factor, Thomas emphasized that “all appear to agree that Florida cannot sue Washington and California in any other forum,” noting that even federal enforcement mechanisms permit judicial review only in narrow circumstances and may not yield the declaratory relief Florida sought. He concluded that the Court was declining “to even hear Florida’s claims, even though it has nowhere else to bring them.”

Yet, in my view, the nature of this very dispute illustrates why the Court’s discretionary approach continues to be sound. Florida’s complaint does not present the kind of bilateral, sovereign-to-sovereign controversy that historically populated the original-jurisdiction docket—disputes over boundary lines, river apportionments, or interstate compacts, where the states themselves are the only proper parties. Indeed, although the Court has never publicly explained how it decides which original cases to hear, it certainly appears as if the Court is granting leave to file in every case in which state-state litigation is the only way to resolve the underlying legal dispute, without regard to the identity of the parties. In contrast, when a state policy (allegedly) causes injuries in another state, there’s always at least some universe of claims that can be brought by other parties (and, thus, in other courts). And those cases are the ones the justices are regularly refusing to hear.

That is also, of course, this case, where Florida asked the Court to adjudicate a contested federal preemption and public-nuisance theory targeting another state’s regulatory policy, on a record Florida itself conceded was “unclear” as to how Singh’s specific license was processed, with the federal Department of Transportation already pursuing parallel enforcement and rulemaking on the same subject. As Washington warned, accepting jurisdiction would invite states to “bring nuisance claims against each other” over any policy disagreement—”lax vaccination policies or firearm restrictions,” for example—transforming the Supreme Court into a court of first instance for politically charged interstate quarrels.

I’ve written before about exactly this concern—which reared its head most visibly in December 2020, when Ken Paxton tried to use the Court’s original jurisdiction to get the Supreme Court to step into the middle of the litigation over the 2020 election results by suing four states directly in the Supreme Court. I think we’re all better off for the Court having had the ability to say, and having said, “no.”

It’s also worth saying a few words about Thomas’s statutory interpretation argument—and the claim that exclusive must mean “mandatory.” Out of context, as a matter of pure statutory interpretation, it certainly is a reasonable position. The problem for Thomas and Alito is that the Supreme Court first expressly adopted the current (discretion-based) interpretation of the same language in 1976 (50 years ago last week, to be exact)—and Congress has left that interpretation undisturbed for a half-century. There comes a point after which Congress’s silence, especially in the face of these kinds of recurring dissents, may fairly be described as a form of acquiescence in the Court’s interpretation.

That acquiescence may reflect not just a sense that the Court is doing a relatively good job of distinguishing between state-state cases that really are ones only the justices can resolve, and those, like Florida, that are political disputes where any true legal objections can be litigated by other parties elsewhere. Indeed, by demonstrating how a state attorney general can package a domestic policy dispute as a casus belli and announce it on cable news, the dissent shows—perhaps unintentionally—why the Court may need the discretion to which it objects, to screen out suits whose form is interstate but whose substance is political. Mandatory jurisdiction in such cases could overwhelm the docket; it could draw the Court into fact-intensive disputes it is ill-equipped to resolve as a trial court; and—as the bipartisan, federally regulated CDL framework here suggests—it could displace the political and administrative channels Congress has already created to address these very issues.

All the while, the result for which Justices Thomas and Alito keep arguing would consume the Court’s finite resources with no obvious stopping point. Congress certainly has the power, in my view, to make the Court’s jurisdiction in such cases mandatory. But there are strong reasons to assume it hasn’t done so until and unless it says so explicitly—and Florida v. California is just the latest example of why.

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SCOTUS Trivia: The Last Non-§ 1251(a) Original Jurisdiction Case

Even within the Court’s non-exclusive original jurisdiction, restraint is the norm—not the exception. The debate in Florida v. California is over § 1251(a)—the Court’s original jurisdiction in cases in which there are states on both sides. But the Court also has “original” jurisdiction under § 1251 in three other sets of cases—those set forth in § 1251(b): “(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; [and] (3) All actions or proceedings by a State against the citizens of another State or against aliens.”

The Court’s jurisdiction in those cases is expressly “not exclusive,” meaning lower courts also have jurisdiction over the same disputes. And even though the Court continues to hear § 1251(a) cases every so often, it has been decades since the last time the Court granted leave to file an original bill of complaint in a case in which its jurisdiction rested on § 1251(b). Specifically, the last § 1251(b) case appears to have been Alaska v. United States, No. 128—a dispute over title to certain submerged lands underlying waters located in southeast Alaska that was filed on November 24, 1999, and that was eventually resolved in the federal government’s favor in a 6-3 ruling in 2005.

As the kids say, it’s been a minute.

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1. Here’s our opening brief in Gonzalez Maldonado; here is Standard Aero’s response brief; and here is our reply brief. We’re the second argument in a session that begins at 10 ET / 9 CT, so you should be able to listen along at this link starting around 10:40 ET / 9:40 CT.