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Denial of leave to file a complaint

The U.S. Supreme Court has just denied the petition from the state of Texas for leave to file a complaint against the state of Wisconsin.

Ten months ago they denied a petition from the state of Arizona for leave to file a complaint against the state of California.

In both cases, Justices Thomas and Alito said they do not have discretionary power to deny such leave because the Constitution says that when one of the states sues another, the U.S. Supreme Court "shall", not "may", have jurisdiction.

Why does this question arise? Why can't a state just file a complaint that the justices can decide to toss out, or not, as they judge fit, instead of first requesting leave to file a complaint. Suppose a state did just that. What would the Court do?

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    This is more of a technicality. For all practical purposes the complaint was filed and then it was tossed out, without the case being heard.
    – amon
    Dec 13 '20 at 8:05
  • @amon : Which leaves the question: Why bother with it? Does the attorney-general of a state fear that he may offend the court by saying "I'm filing this complaint." instead of "I request permission to file this complaint."? Dec 13 '20 at 22:10
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    Because the US follows the common law legal tradition, in which there are weird procedures and words don't always have their obvious meaning. Per my understanding SCOTUS Rule 17 applies: “The initial pleading shall be preceded by a motion for leave to file”, i.e. this is following the normal procedure that the court requires.
    – amon
    Dec 13 '20 at 22:27
  • @amon : So do that have a page that asks for leave to file and additional pages of the same document expressing the complaint that all get handed to the court at the same time? Dec 13 '20 at 22:47
  • @MichaelHardy You can see Texas's "Motion for Leave to File a Complaint" and "Bill of Compliant" that were submitted at the same time here: supremecourt.gov/DocketPDF/22/22O155/162953/… You can also see the separate "Certificate of Word Count" and "Proof of Service" documents they had to provide at the same using the links here: supremecourt.gov/docket/docketfiles/html/public/22o155.html
    – Ross Ridge
    Dec 14 '20 at 0:08
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The U.S. Supreme Court, given the discretionary nature of its customary appellate jurisdiction, has adopted the practice of not considering complaints filed with it in its original jurisdiction until leave to do so is granted.

As the highest legal authority in the land, there is no other court in which this procedure can be litigated.

A complaint filed without leave would either be rejected, or would be deemed a request for leave to file it, and evaluated on that basis. Without the grant of leave to file the complaint, it will not be considered by the U.S. Supreme Court on the merits.

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  • Might it not BOTH be considered a request for leave and also rejected? Would it be rejected for omission of an explicit request for leave where it might not have been rejected otherwise? Will the attorney general of some state suing another state omit such an explicit request and thereby change the procedure to what Thomas and Alito seem to think it should be? Dec 14 '20 at 20:20

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