Happy Thanksgiving! Yes, we know that’s not usually the most proximate holiday when we hit your inboxes for the first time in a term, and, yes, there have been some interesting cert grants and orders on the “shadow docket” that we probably should have been dishing about over the last month or so, but in the spirit of the holidays, let’s let bygones be bygone. What matters is that we’re back now, with news of the Court’s first signed opinion of October Term 2022.
Many Court-watchers spent Monday morning refreshing www.supremecourt.gov’s opinions page expecting potentially momentous decisions in the cases challenging Texas Senate Bill 8: Whole Women’s Health v. Jackson (No. 21-463) and United States v. Texas (No. 21-588). As even non-watchers are aware, over the summer Texas enacted a law that bans nearly all abortions after the sixth week of pregnancy. But in an effort to evade (or at least delay) potential federal-court review, the law uses a novel enforcement mechanism. Instead of tasking state officials with enforcing it (through civil suits or criminal prosecutions), it provides a private right of action to any private citizen (including ones who don’t live in Texas) to sue anyone who either performs or facilitates an abortion in violation of the law, allowing them to recover at least $10,000 in damages. This leads to a strange procedural question: While on the merits, the S.B. 8 is certainly unconstitutional (at least while Roe and Casey remain good law), just who do you have to sue to get the law enjoined? Both abortion-rights groups and the United States sued various candidates (including state courts, court clerks, state officials connected with the law, and abortion opponents who had suggested they might bring private lawsuits against abortion providers). But the Fifth Circuit preliminary ruled that none of these parties were appropriate defendants who could be enjoined and, to the consternation of many, the Court declined intercede earlier in the Fall. It did, however, put the cases on a very fast-track and heard argument on November 1st. Given the stakes (technically, almost all abortions are currently illegal in second-largest state in the country) and the narrow, if novel, issue the Court has agreed to decide (just whether Texas’s review-evading enforcement mechanism is permissible, not whether broad abortion bans are permissible—that question’s up for argument December 1st), all signs point to a swift decision on this question. And so, when the Court announced last week it would be issuing one or more opinions Monday morning, there was considerably more interest than usually surrounds the first opinion day of the term.
All the reporters and politicians and activists looking for a decision on the controversial SB8 were instead treated to a discussion of whether doctrine of equitable apportionment of waterways applies to underground aquifers. But unlike those other Court-watchers, we actually read the opinion, Mississippi v. Tennessee (No. 143, Orig.), and can report that, yes, it does.
Most news coverage of the Supreme Court focuses on the 95+% of its cases that come to it via writs of certiorari, where the Court decides a particular case is important enough to grant discretionary review. But a small handful of cases each term come to the Court through its mandatory original jurisdiction. Most original-jurisdiction cases are suits directly between two states, typically over some injury one state is allegedly causing another (like mooching its water). So too in this case, where Mississippi sued Tennessee, alleging that Tennessee was wrongly taking water out of a massive underground aquifer that spans portions of eight states (and is the primary water source for Memphis).
Mississippi’s basic theory was that it had an absolute right to all the water in the aquifer that lies below the state of Mississippi. And it claimed that Tennessee was infringing its absolute right by pumping so much water out of the under-Tennessee portion of the aquifer that the under-Mississippi water was flowing into Tennessee. (Cue Danie Day Lewis: “I drink your milkshake.”) Normally, this type of dispute about whether one state is overusing an interstate waterway is resolved by the doctrine of equitable apportionment, a judicially created remedy that seeks to apportion the parties’ right to use water based on various factors. But Mississippi’s complaint explicitly disclaimed an equitable apportionment remedy, arguing that this doctrine applies only to above-ground sources of water.
Writing for a unanimous Court, Chief Justice Roberts rejected Mississippi’s theory. True, the Court had never applied the equitable-apportionment doctrine to underground aquifers. But the Court saw no reason why it shoudln’t. The point of the doctrine is to divide up rights between an interstate source of water, and there is no reason why the doctrine should apply to above-ground sources like lakes and rivers but not underground ones, particularly when Mississippi’s allegations were based on the details of the aquifer’s flow. Thus, the only remedy available to Mississippi was to seek an equitable apportionment of the water. And because Mississippi’s complaint explicitly foreswore that remedy, the Court dismissed its complaint. Enjoy that milkshake, Tennessee!
Although those outside the riparian bar may have been disappointed in the subject-matter of this week’s lone decision, we do expect more opinions in the coming weeks, and we still anticipate a relatively swift decision in the S.B. 8 cases. Whatever comes next, we’ll be back to discuss it. Until then, enjoy your Thanksgiving!
Dave and Tadhg