The Supreme Court begins a new term tomorrow, the first Monday in October, and the opening hearing might sound something like the constitutional debates, circa 1787. The first case poses a question that is as old as the Constitution itself, and it’s a question that the founders specifically created the Supreme Court to answer. The Justices go to the bench to start the hearing at 10 a.m. (A second case will be heard later in the morning; it is discussed below.)
They will be on the bench for the first time since early March 2020. They have conducted hearings by telephone since then, due to the pandemic. The junior Justice, Amy Coney Barrett, has been serving for nearly a year without ever appearing in a public hearing. Justice Brett M. Kavanaugh will be participating from home this week because of a positive test for covid; he has no symptoms and has been vaccinated, according to the Court.
First case: Mississippi v. Tennessee The hearing is scheduled for 65 minutes; the audio (but not the video) can be heard, live, on the Court’s homepage – supremecourt.gov – at the Quick Links. Go to Live Audio, at the bottom right of the Quick Links; the audio also will be live-streamed at c-span.org/supremecourt and can be accessed on smartphones at C-Span Now App.
Background: Much history lies behind this case. After more than two centuries of living under its 18th Century Constitution, America still has not made up its mind whether the states are independent governments in any real sense of that word. Back before the Constitution, they definitely were: the Articles of Confederation said so: “Each state retains its sovereignty, freedom and independence.”
Under the Articles of Confederation (1777-1787), each of the original 13 states had one vote in the national Congress, and they jealously defended their independence there. There were no federal courts, so any disputes between the states depended upon settlement in Congress. That did not go well.
The woeful failures of the Articles led the delegates assembled at the 1787 convention in Philadelphia to create a strong, new national government, and bound the states into a Union in which they gave up a lot of their sovereign power. The Supreme Court was given the task, all on its own, of deciding legal and constitutional disputes between the states. In fact, such disputes can only be decided there; lower courts have no assigned role, so a case of state vs. state begins, continues and ends only in the Supreme Court.
Although the theory of full sovereignty ended for the states in 1787, they have asserted versions of the idea from time to time, and the Supreme Court at times has been quite sympathetic to their claim – and especially so since the 1990s.
One theory of state sovereignty that still exists is that each state owns all of its natural resources, unless it has allowed private ownership or the resources are owned by the federal government. For underground resources, like water, it is as if the boundary lines of a state are an imaginary fence that runs deep into the earth to mark the limits of what it owns.
Why is this situation before the Supreme Court now?
On a broad level, the Mississippi case goes to the heart of what state sovereignty means, at least when it involves management of natural resources that are shared with other states.
But on a less-lofty level, the case actually comes down to a dispute over a simple part of the science of hydrology: the underground water source that Mississippi claims as sovereign property (part of a huge water-bearing sandy layer called an “aquifer,” here the Middle Claiborne Aquifer) lies under seven other states, too, and some of the others, too, have been drilling wells to pump water out of that aquifer since 1886. Even though wells are drilled straight down, the physical reality is that one state’s wells can pull water from more than its own underground area, reducing what’s available for another state.
Mississippi since 2005 has been arguing in various courts that one of the other states – Tennessee, and especially the city of Memphis and its local water utility – have been siphoning off too much of the Middle Claiborne water, depriving Mississippi of at least part of what it owns.
Mississippi took its challenge to the Supreme Court in 2014, after a lower federal court ruled that the case had to proceed only before the Justices because the state of Tennessee had to be a part of the dispute. (It has taken all of seven years for the case to unfold before the Justices; that is typical of such interstate controversies, which can involve highly complex facts and unusual legal and constitutional questions.)
The questions now before the Court: When two states share a natural resource, do they have any duty to manage it to protect each other’s interests? Have Tennessee, the city of Memphis and the Memphis Light, Gas and Water Division violated Mississippi’s sovereign rights? Do they owe Mississippi at least $615 million for damages that Mississippi claims? Is an award of damages the right remedy in this situation?
Significance: Basically, Mississippi is attempting to create a new legal and constitutional doctrine that states owe each other a binding duty, leading to money damages if violated, to manage a shared natural resource in order to protect each other.
This runs counter to a long-established doctrine, based in the Constitution, that if states have competing interests, the best way to work them out is to join in an interstate compact, which must get congressional approval. History has produced hundreds of such compacts, and they seem to work well. Much of what the Supreme Court has historically done with state vs. state cases has been interpreting the scope of such compacts.
There is no interstate compact governing the drawing of water out of the Middle Claiborne Aquifer. In recent years, the city of Memphis’s water utility company has been operating more than 160 wells to supply local users, and it has not been obliged to think about the impact of that on the waters drawn by wells across the border in Mississippi. That should change, Mississippi argues.
Mississippi is also seeking a new approach to the shared use by states of water that is present in (or under) more than one state. Typically, when upstream use of a common waterway like a river lowers the amount available to flow downstream to another state, and a dispute arises, a court is summoned to work out what is called “equitable apportionment.” In short, that simply means the states are assigned shares of the available flow of water, in a way that is fair to both.
At one point in its challenge to Tennessee and to Memphis, Mississippi asked for that kind of sharing arrangement regarding the shared aquifer. It has now abandoned that, in favor of pressing the novel doctrine of a state’s duty to manage shared natural resources in every concerned state’s interest – without bothering to enter into a compact or to get a court order to divide up shares.
Mississippi’s task in convincing the Court to rule its way has some formidable opposition: the Biden Administration has asked that the case be dismissed unless Mississippi is willing to seek a formal sharing arrangement, a federal judge named by the Court to make recommendations for a decision is taking that same position, and eight other states are opposing the new doctrine being pushed by Mississippi.
It no doubt will take the Court months to sort it all out.
Second case: Wooden v. United States. It is scheduled for one hour, beginning at about 11:30 Monday. To listen, live, go to the Court’s homepage — supremecourt.gov – and scroll down to the Live Audio link at the right of Quick Links; listening is also available at c-span.org/supreme court and on smartphones at C-Span Now App.
Background: It is one of the oldest principles governing laws that punish for crimes that such a law should be specific enough that ordinary people get a clear idea of what is being outlawed, so that they can conduct their lives in a legal way and don’t wind up in criminal court. The Supreme Court remarked in another case two years ago: “In our constitutional order, a vague law is no law at all.”
This is a basic idea of “fair warning,” or, legally speaking, a matter of “due process” that is required by the Constitution’s Fifth and Fourteenth Amendments.
It is also a fact of life in Congress and in state legislatures, however, that criminal laws are often written in vague terms, providing an unclear warning of where the legal line has been drawn. Sometimes, this is unintentional, but other times the need for legislative compromise results in a vague text.
Every year, the Supreme Court spends a good deal of its time and energy trying to define what a criminal law actually means. This is fundamentally an attempt to figure out what the legislature had in mind. The Court, of course, is not free to re-write the law or to craft a definition of what it would prefer. If it can’t find what the real intent was, it is obliged to strike down the law as “void for vagueness,” in the legal vernacular.
That is the task of interpretation that the Court has taken on in the case of a Tennessee man, William Dale Wooden.
The question before the Court: Under what circumstances during a criminal trial do the actions of a defense lawyer forfeit the accused person’s constitutional right to confront accusers in the courtroom?
William Wooden is serving a prison term of 15 years and eight months for the federal crime of being a felon who had a gun in his possession. If he had not been sentenced under the Armed Career Criminal Act, the longest prison term he could have received for the gun-possession crime was 10 years.
Under the career criminal law, an individual convicted in the past of three violent crimes (under federal or state law) must be sentenced to at least 15 years in prison, up to a life sentence. The part of that law at issue in Wooden’s case says that the three crimes must have been “committed on occasions different from one another.” What does that mean?
Among Wooden’s prior crimes, before the gun-possession charge in Tennessee, was a state conviction years earlier in Georgia for burglarizing ten different units of a storage facility. He had entered each unit separately, but did so all on one night. He contended that this was one crime, but the lower courts ruled that it amounted to ten – primarily on the premise that he could have stopped between each burglary, so each came on a different “occasion.”
In his appeal to the Supreme Court, his lawyers argued that Congress – in requiring crimes to have been done on separate occasions – could not have meant to apply added punishment by treating a single criminal episode as turning the individual into a “one-day career criminal.” The Justice Department, defending Wooden’s sentence, says the lower courts got it right. The Justices will try to clarify the word “occasion” in the federal law.
On Tuesday, the Court will hold two hearings in criminal cases. They will be discussed here on Monday. In summary, the first case seeks to clarify when a federal court can overturn a state murder conviction because the accused individual was shackled during the trial, making him appear to the jury to be more dangerous. The second case, also involving a murder, is a test of when an individual on trial gives up his constitutional right to demand that witnesses against him appear to testify at the trial so that their version can be challenged.