Access to the Supreme Court 507the Court has original jurisdiction in cases involving a foreign ambassador or foreign
countries or cases in which a state is a party. As a practical matter, the Court shares
jurisdiction with the lower courts on these issues.
In recent years, the Court has invoked original jurisdiction only in cases involving
disputes between two or more states over territorial or natural resource issues. For
example, New Jersey and New York had a disagreement about which state should
control 24 acres of filled land that the federal government had added around Ellis
Island. Another case involved a dispute between Kansas and Colorado over which state
should have access to water from the Arkansas River (recent disputes often concern
water rights).^34 If original jurisdiction is granted and there are factual issues to be
resolved, the Court will appoint a “special master” (usually a retired federal judge)
to hold a hearing, gather evidence, and make a recommendation to the Court. This
process is necessary because the Supreme Court is not a trial court. In the history of our
nation, only about 190 cases have made it to the Court through this path, an average
of less than 1 per year, and typically these cases do not have any broader significance
beyond the parties involved.^35
The other three routes to the Court are all on appeal: as a matter of right (usually
called “on appeal”), through certification (a process that has been used only five times
since 1982),^36 or through a writ of certiorari. Cases on appeal are those that Congress
has determined to be so important that the Supreme Court must hear them. Before
1988, these cases constituted a larger share of the Court’s docket and they included
(1) cases in which a lower court declared a state or federal law unconstitutional
and (2) cases in which a state court upheld a state law that had been challenged as
unconstitutional under the U.S. Constitution. The Court currently has much more
discretion on these cases, however; the only ones that the Court is still compelled to
take on appeal are some voting rights and redistricting cases.
The third path is the most common: at least 95 percent of the cases in most sessions
arrive through a writ of certiorari (from the Latin “to be informed”). In these cases, a
litigant who lost in lower court can file a petition to the Supreme Court explaining why
the Court should hear the case. If four justices agree, the case will get a full hearing (thiswrit of certiorari
The most common way for a case to
reach the Supreme Court, in which at
least four of the nine justices agree to
hear a case that has reached them via
an appeal from the losing party in a
lower court’s ruling.On rare occasions the Supreme
Court serves as a court of original
jurisdiction. One of those unusual
times is when there is a dispute
between two states, such as when the
Court had to settle a disagreement
between New York and New Jersey
over Ellis Island.Full_15_APT_64431_ch14_488-529.indd 507 16/11/18 1:45 PM