The Original Jurisdiction of the U.S. Supreme Court

Color photo of the US Supreme Court building in Washington, D.C.
The US Supreme Court Building, Washington, D.C. AaronP/Bauer-Griffin

While the vast majority of cases considered by the U.S. Supreme Court come to it in the form of an appeal to a decision by one of the lower federal or state appeals courts, a few but important categories of cases can be taken directly to the Supreme Court under its “original jurisdiction.”

Original jurisdiction is the power of a court to hear and decide a case before it has been heard and decided by any lower court. In other words, it is a court’s power to hear and decide a case before any appellate review.

The Fastest Track to the Supreme Court

As originally defined in Article III, Section 2 of the U.S. Constitution, and now codified in federal law at 28 U.S.C. § 1251. Section 1251(a), the Supreme Court has original jurisdiction over four categories of cases, meaning parties involved in these types of cases can take them directly to the Supreme Court, thus bypassing the usually lengthy appeals court process.

In the Judiciary Act of 1789, Congress made the Supreme Court's original jurisdiction exclusive in suits between two or more states, between a state and a foreign government, and in suits against ambassadors and other public ministers. Today, it is assumed that the Supreme Court's jurisdiction over other types of suits involving the states was to be concurrent or shared, with the state courts.

The categories of cases falling under the Supreme Court’s original jurisdiction are:

  • Controversies between two or more states;
  • All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
  • All controversies between the United States and a state; and
  • All actions or proceedings by a state against the citizens of another state or against aliens.

In cases involving controversies between states, federal law gives the Supreme Court both original—and “exclusive”—jurisdiction, meaning such cases may be heard only by the Supreme Court. 

In its 1794 decision in the case of Chisholm v. Georgia, the Supreme Court stirred controversy when it ruled that Article III granted it original jurisdiction over suits against a state by a citizen of another state. Both Congress and the states immediately saw this as a threat to the sovereignty of the states and reacted by adopting the Eleventh Amendment, which states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” 

Marbury v. Madison: An Early Test

An important aspect of the Supreme Court’s original jurisdiction is that its Congress cannot expand its scope. This was established in the bizarre “Midnight Judges” incident, which led to the Court’s ruling in the landmark 1803 case of Marbury v. Madison.

In February 1801, newly elected President, Thomas Jefferson — an Anti-Federalist — ordered his acting Secretary of State James Madison not to deliver commissions for appointments for 16 new federal judges who had been made by his Federalist Party predecessor, President John Adams. One of the snubbed appointees, William Marbury, filed a petition for a writ of mandamus directly in the Supreme Court, on the jurisdictional grounds that the Judiciary Act of 1789 stated that the Supreme Court "shall have power to issue … writs of mandamus ... to any courts appointed, or persons holding office, under the authority of the United States.”

In its first use of its power of judicial review over acts of Congress, the Supreme Court ruled that by expanding the scope of the Court’s original jurisdiction to include cases involving presidential appointments to the federal courts, Congress had exceeded its constitutional authority.  

Few, but Important Cases

Of the three ways in which cases may reach the Supreme Court (appeals from lower courts, appeals from state supreme courts, and original jurisdiction), by far the fewest cases are considered under the Court’s original jurisdiction.

On average, only two to three of the nearly 100 cases heard annually by the Supreme Court are considered under original jurisdiction. However, many are still important cases.

Most original jurisdiction cases involve border or water rights disputes between two or more states, meaning they can only be resolved by the Supreme Court. For example, the now famous original jurisdiction case of Kansas v. Nebraska and Colorado involving the rights of the three states to use the waters of the Republican River was first placed on the Court’s docket in 1998 and was not decided until 2015. 

Other major original jurisdiction might involve lawsuits filed by a state government against a citizen of another state. In the landmark 1966 case of South Carolina v. Katzenbach, for example, South Carolina challenged the constitutionality of the federal Voting Rights Act of 1965 by suing U.S. Attorney General Nicholas Katzenbach, a citizen of another state at the time. In its majority opinion written by revered Chief Justice Earl Warren, the Supreme Court rejected South Carolina’s challenge finding that the Voting Rights Act was a valid exercise of Congress' power under the enforcement clause of the Fifteenth Amendment to the Constitution.

Original Jurisdiction Cases and 'Special Masters’

The Supreme Court deals differently with cases considered under its original jurisdiction than those reaching it through its more traditional “appellate jurisdiction.”

In original jurisdiction cases dealing with disputed interpretations of the law or the U.S. Constitution, the Court itself will usually hear traditional oral arguments by attorneys on the case.

However, in cases dealing with disputed physical facts or actions, as often happens because they have not been heard by a trial court, the Supreme Court usually appoints a “special master” to the case.

The special master—usually an attorney retained by the Court—conducts what amounts to a trial by gathering evidence, taking sworn testimony and making a ruling. The special master then submits a Special Master Report to the Supreme Court.

The Supreme Court then considers the special master’s ruling in the same manner as a regular federal appeals court would, rather than conducting its own trial.

Next, the Supreme Court decides whether to accept the special master’s report or to hear arguments over the disagreements with the special master’s report.

Finally, the Supreme Court decides the case by voting in its traditional manner, along with written statements of concurrence and dissent.

Original Jurisdiction Cases Can Take Years to Decide

While most cases that reach the Supreme Court on appeal from lower courts are heard and ruled on within a year after being accepted, original jurisdiction cases assigned to a special master can take months, even years to settle.

The special master must basically “start from scratch” in handling the case. Volumes of pre-existing briefs and legal pleadings by both parties must be read and considered by the master. The master may also need to hold hearings in which arguments by the lawyers, evidence, and witness testimony may be presented. This process results in thousands of pages of records and transcripts that must be compiled, prepared and weighed by the special master.

For example, the original jurisdiction case of Kansas v. Nebraska and Colorado involving disputed rights to water from the Republican River was accepted by the Supreme Court in 1999. Four reports from two different special masters later, the Supreme Court finally ruled on the case 16 years later in 2015. Thankfully, the people of Kansas, Nebraska, and Colorado had other sources of water.