On January 5, the supreme courts of Idaho and South Carolina issued major decisions about abortion rights under their state constitutions. The former upheld the state law banning abortion, while the latter struck it down. But there was one thing the cases had in common that may have gone unnoticed: both cases were decided under “original jurisdiction,” meaning they were filed directly in the state supreme court rather than starting in lower courts and working their way up on appeal.
The Oklahoma Supreme Court also recently decided a major reproductive rights case in its original jurisdiction. But, of course, the original jurisdiction of state supreme courts is not limited to abortion cases. It can be quite broad, and in recent years, state supreme courts have used their original jurisdiction to weigh in on many important issues. Original jurisdiction law also creates opportunities for legislatures to alter the way disputes are litigated and decided, including in ways that might remind readers of better-known maneuvers such as court packing and jurisdiction stripping.
What Is Original Jurisdiction?
The term “original jurisdiction” refers to cases that can be filed directly in a given court. When talking about supreme courts, “original jurisdiction” refers to those cases that can skip over the lower courts and land directly in the supreme court.
The original jurisdiction of the U.S. Supreme Court is quite narrow, comprising mostly cases between states, often over issues such as water rights.
The original jurisdiction of state supreme courts is a different matter. In a new paper in the University of Chicago Law Review, I document that state supreme courts often have significant original jurisdiction. Many state constitutions and statutes offer broad grants of original jurisdiction, including the power to issue orders to government officials.
State laws also often include more specific grants of original jurisdiction. The most common topic of such specific grants is elections — for example, original jurisdiction over redistricting and reapportionment, ballot initiatives and referenda, or election contests. Some state original jurisdiction statutes even give state supreme courts the power to draw electoral maps, calling into question some of the most extreme versions of the “independent state legislature theory.”
How Is Original Jurisdiction Used?
State original jurisdiction is not merely a theoretical possibility — it has been used in many high-profile cases across a range of issues.
I mentioned above the abortion decisions. Other high-salience issues that have been adjudicated in original actions include the death penalty, LGBTQ+ rights, guns, and restoring voting rights to people with previous convictions.
My new paper surveys close to 100 original actions related to elections and Covid-19 since 2020. Original election cases include challenges by the Trump campaign to the 2020 election and a number of cases challenging election administration in the run-up to a vote. The Covid-19 cases include challenges to state mitigation measures as well as interbranch conflicts, such as suits between legislators and the executive.
These findings are consistent with a couple of larger trends: original actions often address major issues of public policy, and they often involve government parties on at least one side.
Why Does Original Jurisdiction Matter?
Readers might think that original jurisdiction does not make much difference — if a state supreme court is ultimately going to decide an issue, why does it matter if it takes the case in an original action or on appeal? It turns out that the way a case gets to the supreme court, if it gets there at all, can matter greatly.
First, original actions differ from appeals in some predictable, mechanical ways. An expansion of original jurisdiction almost necessarily has three effects: it assigns any necessary fact-finding to courts not typically engaged in that task, it eliminates or at least dramatically reduces opportunities for appellate review, and it creates opportunities for quicker resolution. Each of these effects can change how a case comes out.
In addition, original jurisdiction affects litigation dynamically. Original actions avoid the frictions of lower court litigation. Lower courts can award preliminary relief; they can make decisions about the admissibility of evidence or what discovery can be taken; they can be fast or slow. Those frictions shape the case that ultimately gets to the supreme court, and they can shape the parties’ willingness to continue litigating.
These effects may be especially important where lower court judges have different preferences from the supreme court. In Republican-controlled states with Democratic-run cities, for example, original jurisdiction skips over litigation in front of a locally elected trial judge and sends cases to a supreme court selected statewide.
The possibility of original jurisdiction interacts with parties’ ability to forum shop. Depending on various factors, parties might prefer to shop for their preferred lower court judge or to jump to the supreme court immediately. Where original jurisdiction is discretionary, state supreme court justices also can “shop” to take cases they want and avoid those that they don’t. In this way, original jurisdiction affects the distribution of agenda-setting power among parties and courts.
Legislating Original Jurisdiction
Finally, it is important to recognize that the law of original jurisdiction is not static. My research revealed dozens of recent pieces of state legislation that address original jurisdiction.
Some of this legislation might reflect neutral principles, such as a turn to original jurisdiction when there is a felt need for an immediate and definitive resolution of a legal question. One example might be challenges to the wording of a ballot initiative shortly before ballots must be printed.
But original jurisdiction also presents opportunities for legislatures to play politics. For example, legislators who see a politically aligned state supreme court might channel cases to that body in order to avoid those litigation frictions mentioned above. Indeed, a legislature might choose to “judicialize” a policy question in the first place precisely because they can send it to a friendly supreme court — and, by essentially delegating policymaking to the court, the legislature can avoid some public scrutiny.
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In sum, original jurisdiction affects the distribution of agenda-setting power among parties and courts, and legislative decisions about original jurisdiction will be informed by how parties and courts will act. Especially given the high levels of polarization and the high salience of the issues that are included in original jurisdiction, there is a good chance that legislatures will increasingly turn to original jurisdiction as a means of achieving policy goals.
Zachary Clopton is a law professor at Northwestern Pritzker School of Law. The views expressed are the author’s own and not necessarily those of the Brennan Center.