The Supreme Court of the United States often goes by a nickname, "The Highest Court in the Land." And that's not just because of its secret, fifth floor basketball court. SCOTUS, another popular nickname, is the highest court in the federal judiciary. Established by Article III of the United States Constitution, the court has ultimate appellate jurisdiction over all federal and state court cases that involve a point of federal constitutional or statutory law. That jurisdiction is largely discretionary -- that is, the Justices, themselves, decide which cases to hear and which cases to pass on. The process of getting case to the Supreme Court is rigorous and the chances of getting an audience with the seven Justices is slim. Each term the Court receives between 7,000 and 8,000 filings, with only about 80 of those cases being given a hearing. All in all, about 100-150 cases a year are decided by the court.
Lesser known is SCOTUS' original jurisdiction -- that is the types of cases that can be filed directly with the Supreme Court. Article III grants the Supreme Court original jurisdiction in a rare set of circumstances, "In all cases affecting ambassadors, other public ministers and counsuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction." The Supreme Court historically hears between 0 and 3 such cases each term. Lower federal courts have the same original jurisdiction, so litigants typically file somewhere else. Plus, the Supreme Court is not really set up to try lawsuits - even ones that fall within its original jurisdiction.
The framers likely carved out this original jurisdiction for the Supreme Court out of a sense of fairness. Where else, for instance, could Arizona sue Texas over water rights issues and get a fair shake? Or where could Wyoming and Colorado go head to head on where to draw the border. Beyond that, though, the typical case is adequately handled in a federal district courthouse.
Last week the Arizona Attorney General took the very bold step of filing a lawsuit on behalf of the State of Arizona in the Supreme Court of the United States. Saying the opioid crisis requires bold action, the state asks the Justices to order members of the Sackler family, which owns Purdue Pharma, the leading maker of opioids, to return what it claims are billions of dollars looted from the company.
In an interview with the New York Times, Arizona Attorney General Mark Brnovich said, "We want the Supreme Court to make sure that we hold accountable those individuals who are responsible for this epidemic." This lawsuit is not unique - similar claims have been filed nationwide. What makes this an audacious strategy is filing directly with the Supreme Court. Brnovich stated, "I do think it is a long shot. It's a little different. It's a little unorthodox. Sometimes you've just got to throw deep."
In it's lengthly and detailed complaint, Arizona alleges that the opioid crisis has contributed to hundreds of thousands of deaths in the last two decades and cost the United States economy more than $78 billion annually.
While the plain language of Article III suggests that the Supreme Court has to hear this case, over the years the Court has exercised its discretion and turned down cases that otherwise far into its original jurisdiction. And since it's the highest court in the land, who's going to overrule them. Most recently, the Supreme Court declined jurisdiction in Nebraska v. Colorado. Nebraska sued its neighbor on claims that centered on Colorado's legalization of marijuana. In a 5-2 decision, the Court declined jurisdiction. Justices Thomas and Alito wrote a dissent arguing that federal law does not allow the Supreme Court to decline jurisdiction on cases that fall within Article III's grant of original jurisdiction. Arizona's lawyers rely on that dissent in their filing.
If the Supreme Court accepts jurisdiction, it will likely assign a Special Master to coordinate pre-trial matters like discovery and depositions. In my estimation, though, the Supreme Court will direct that this case, as important as it is, be heard at the District Court level. And I suspect that the team of lawyers representing Arizona know as much, too. This strong shot across the bow of Purdue Pharma may really be a play to position Arizona for a leading role in future settlement negotiations and/or a leading role in some consolidated litigation where claims by many states are litigated against the company in one proceeding. Arizona clearly wants to make its presence felt, and quickly.
You can read the complaint here.