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45 Me. L. Rev. 185 (1993)
Discretionary Gatekeeping: The Supreme Court's Management of Its Original Jurisdiction Docket Since 1961

handle is hein.journals/maine45 and id is 191 raw text is: DISCRETIONARY GATEKEEPING: THE
SINCE 1961
Vincent L. McKusick*1
There is a special drama when a state sues another state invoking
the original jurisdiction of the Supreme Court of the United States.
In the international arena, similar disputes between sovereign states
would be settled through diplomatic negotiations or armed conflict,
and the stakes in the Supreme Court trial are often as high as in
international disputes.2 In 1963, after protracted litigation brought
under the Supreme Court's original jurisdiction by the State of Ari-
zona against the State of California, the Court issued its decision
* Chief Justice, Maine Supreme Judicial Court, 1977-1992. Of counsel, Pierce,
Atwood, Scribner, Allen, Smith & Lancaster, Portland, Maine, 1992-. Special Master,
Connecticut, et al. v. New Hampshire (No. 119 Orig.), 1992-93.
This Article is an elaboration of a paper delivered by the author at the 1992 Au-
tumn Meeting in Philadelphia of the American Philosophical Society. The author re-
ceived valuable assistance in preparing this paper from Susanni Douville, Esq. and
David Littell, Esq., both of Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Port-
land, Maine.
1. This Article studies the Supreme Court's management of its original jurisdic-
tion docket during the period from October 1, 1961 through April 25, 1993. The start-
ing date coincides with the Court's change of its original jurisdiction docket to contin-
uous consecutive numbering, from its prior system of giving new docket numbers
each term to the cases carried over from the preceding term. Until April 26, 1993, the
most recently filed original jurisdiction case under the consecutive numbering system
was Connecticut v. New Hampshire (No. 119 Orig.), which was initiated on October
30, 1991. The Supreme Court dismissed that latest case on April 16, 1993, pursuant to
a settlement agreement announced by the parties shortly before the Court was sched-
uled to hear oral argument on exceptions to the final report filed by the present au-
thor as special master. 113 S. Ct. 1837 (1993); New Hampshire Alters Tax Plan for
Seabrook, Averting Court Fight, WALL ST. J., Apr. 14, 1993, at Bl. On April 26,
1993, the State of New Jersey filed a motion for leave to fie a complaint against the
State of New York to determine the state boundary on Ellis Island in New York
Harbor, thus initiating New Jersey v. New York (No. 120 Orig.). This Article does
not reflect any Supreme Court action subsequent to April 25, 1993, in that or any
other original jurisdiction case.
The Article complements the excellent student work, Note, The Original Jurisdic-
tion of the United States Supreme Court, 11 STAn. L Ray. 665 (1959), which sur-
veyed all original jurisdiction cases that produced at least one published opinion in
the first 170 years of Supreme Court history.
2. See James E. Beaver, Common Law vs. International Law Adjective Rules in
the Original Jurisdiction, 20 HASTINGS L.J. 1 (1968); William W. Van Astyne, The
Justiciability of International River Disputes: A Study in the Case Method, 1964
DuKE LJ. 307; William W. Van Alstyne, International Law and Interstate River Dis-
putes, 48 CAL L Rzv. 596 (1960).

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