Last week, the State of Arizona made an interesting litigation decision.

As part of the ongoing litigation over the opioid crisis, Arizona filed a complaint against Purdue Pharmaceuticals and its owners, the Sackler family, alleging violations of Arizona’s Uniform Fraudulent Transfer Act. The suit alleges that the Sacklers stripped the assets of Purdue by making large cash transfers out of the company, and that these transfers threatened Purdue’s ability to satisfy possible upcoming judgments stemming from civil suits arising out of the opioid crisis.

The interesting thing about the suit, however, is that Arizona sought leave to file it directly in the Supreme Court of the United States.

Article III of the United States Constitution invests original jurisdiction in the Supreme Court for a limited number of cases, including controversies between a State and another state’s citizens. The question raised by Arizona, however, is not whether the Supreme Court can take the case, but whether it must take the case.

In 1971, in the case of Ohio v. Wyandotte Chem. Corp., the Supreme Court declined to exercise original jurisdiction over a controversy between the State of Ohio and several companies that were incorporated in other states, setting the precedent that the Court has discretion to decline its jurisdiction in such cases.  Arizona now argues that the Supreme Court should overrule its prior precedent and hold that the Court has no such discretion.

In asking the Court to find that the exercise of jurisdiction is required, Arizona cites to a dissenting opinion by Justice Thomas in Nebraska v. Colorado, another case in which the Supreme Court declined to exercise original jurisdiction.

Justice Thomas’s dissenting opinion, however, relies in large part on the fact that Nebraska v. Colorado was a suit between two states, a situation for which the Supreme Court has not only original, but exclusive jurisdiction, rendering it the only forum for such suits, and depriving the parties of a remedy when the Court declines jurisdiction.

Arizona’s case is against citizens of another state, not another State itself. In such situations, the Supreme Court has original, but not exclusive, jurisdiction, seemingly depriving Arizona of the main thrust of Justice Thomas’s concerns.

Arizona’s brief does acknowledge this point, arguing that just because the jurisdiction is not exclusive does not mean that it should be discretionary. However, as others point out, such arguments are considerably weaker in the state v. citizen context, given the availability of other forums.

The Supreme Court’s rationale in Wyandotte was essentially one of caseload management. Justice Harlan’s majority opinion reasoned that as society grows more complex, states become embroiled in ever more litigation with citizens. If the Supreme Court had no discretion to decline jurisdiction over such cases, it would likely never be able to hear anything else, thwarting much of its main purpose as a final appellate court.

Note that on top of the issue of the Supreme Court having exclusive jurisdiction over state v. state suits, the “floodgate” concerns do not really exist in those suits either, as they are far rarer (and most often involve more obscure issues like water rights).

Thoughts on the case, or original jurisdiction more generally? Leave them below!