This week at the Supreme Court: In Plain English
on May 6, 2011 at 9:08 pm
Do the Justices have spring fever? After all, it’s May, there are only about six weeks left in the Term, and the Court has yet to issue opinions in over half of the Term’s merits cases. Well, even though the Court has been somewhat  slow to issue opinions this Term (at this time last year, the Court had issued about forty-five opinions, while two years ago it had issued over fifty, as compared to thirty-nine so far this Term), it’s not that far behind.Â
But now that arguments are over for the Term, we should expect that the Justices are working hard to write, write, write – and, beginning on May 16, which is the next day that we expect opinions, we might well have several to peruse and analyze on each and every opinion day.Â
This week, the Court decided only one case, one decided under its original jurisdiction. What’s that? Well, the Constitution tells us that the Court may decide most cases under its appellate jurisdiction (or as a court of appeals, deciding cases that were first heard by the lower state and federal courts). However, occasionally it will decide cases that start in the Supreme Court, which actually serves as a trial court. Most of these cases involve situations where a state is suing another state, often over a boundary dispute or a conflict over shared waterways.Â
And that’s what we had in Montana v. Wyoming, a case about the Yellowstone Compact, a contract dictating how each state could use water from shared rivers. Montana claimed that Wyoming had violated the contract – not because it was taking more water out of the river than it was allowed to by the contract, but because it had developed more efficient ways of using the water that it did take, so that there was less water to run off and return to the river for Montana to use later on. But the Court disagreed in a seven-to-one vote (with Justice Kagan recused), agreeing with Wyoming that merely being more efficient about using the water was not the same as diverting more in the first place (a practice that would violate the contract).Â
Justice Scalia, who has called dissenting one of his greatest pleasures, disagreed with his colleagues’ reading of the contract. He read the contract as referring to the total amount of water that Wyoming used (and thereby prevented Montana from using), not the amount that it originally took from the rivers. As he often does, he based his analysis on a textual reading of the contract, arguing that the majority had not interpreted the contract provisions in the way it should have.
One more note about this case: The opinion was Justice Thomas’s fourth majority opinion of the Term. Given that just a few weeks ago, Court watchers were noting that Thomas had yet to write any majority opinion, it’s clear that Justice Thomas’s chambers has been hard at work. One interesting question: does the fact that he has now written for the majority in four cases in a short time reflect assignments within his chambers; that is to say, did each of his four law clerks complete his or her (Thomas has one female and three male clerks this Term) first major assignment? We’ll never know; clerk workloads are closely guarded secrets, but we do know that the clerks typically spread out the work among themselves (or have the work distributed by their Justices), ensuring that no one clerk bears an overly burdensome load.Â
I do not usually write about cert. grants, at least not until the cases are argued or decided. But one of this week’s grants was particularly interesting, so it warrants some comment. In M.B.Z. v. Clinton, the Court will take up the issue of Jerusalem: whether the United States should be neutral as to whether Israel can claim the city, whether U.S. citizens can request that “Israel†be listed as their birthplace if they were born in Jerusalem, and who gets to decide (the passport holder, the President, or Congress). This is a long-running debate, but in 2002 Congress passed a law that required the State Department (if asked to do so) to list “Israel†as the place of birth on passports for U.S. citizens born in Jerusalem.  However, when President Bush signed the bill into law, he stated that the law was not mandatory, but instead only advisory.Â
In granting cert., the Court asked the parties to address the question of whether the 2002 law (which essentially recognizes Jerusalem as the capital of Israel, a position that the executive branch has expressly declined to take) interferes with the executive power to set foreign policy. Some commentators have noted that the Court’s decision may affect relations between the United States, Israel, and the Arab regions sometimes known as Palestine.Â
We are not expecting opinions next week, so I will post the next Plain English column two weeks from now.
