The Supreme Court has broad powers, but there are two things it supposedly will not do with its authority: make new government policy or play politics. Its only job is to interpret existing law by deciding real cases between two genuine adversaries. Policymaking and politics fall to the legislative and executive branches of the government.
However, a new legal fight between state governments that has just reached the Court may pull the Justices into both policymaking and political maneuvering.
At issue in the new case is the high-stakes fight over the attempted merger of two leading Hollywood movie-makers and companies in the growing field of cable TV programming. Those are institutions with major influence over the news that reaches Americans and the entertainment offered to them. The future of CNN, a prominent cable news network, is at stake; it is owned by the Warner Bros. studio.
The proposed merger of Warner with another big film company, Paramount, is valued at $110 billion. The merger is now on hold under a temporary order issued by a federal court in California in a case set to go to trial next March.
That case, filed by 12 states with liberal governments, has to do with federal antitrust law. It concerns highly visible issues, including complaints of questionable maneuvering by President Trump in promoting the merger with the specific aim of shaping news coverage, especially on CNN – a frequent target of his criticism.
Last month two states with conservative governments, in a little-noticed constitutional challenge, asked the U.S. Supreme Court to shut down that case and let the merger go ahead. The move, by Iowa and Montana, could force the Court to confront blatant claims of political maneuvering, and the role – if any – that politics should play in enforcing the law governing business competition.
What is more important to the Court, though, is that those two states are trying to persuade the Justices to make a fundamental change in the way the Court has long handled legal fights between state governments.
Specifically, they want the Court to commit itself to deciding every case in which any state wants to sue any other state. For more than two centuries, the Court has taken on such cases only rarely – at most a couple of times a year — and has insisted regularly that it has full discretion to decide whether to get involved or deny review, as with most other kinds of cases.
As state attorneys general across the nation become more eager to pursue their conflicting political ideologies by turning to the courts, a Supreme Court that took on all such cases would be far busier than it is now and would inevitably be presiding over heavy political controversies, including many matters that normally would have played out in lobbying before Congress. That body’s general retreat from policymaking through new laws created the gap that the states are attempting to fill in the courts.
Disputes between state governments sooner or later touch on the Eleventh Amendment. That Amendment was swiftly added to the Constitution in 1795, when the nation was only six years old, to overturn a 1793 Supreme Court decision, Chisholm v. Georgia. In that case, the Court had permitted a citizen of South Carolina to sue the state of Georgia in federal court over an unpaid debt for supplying military supplies during the Revolutionary War. The Eleventh Amendment barred such lawsuits.
The Chisholm decision was based on a part of the Constitution that spelled out the powers of the federal courts. What has now arisen in the Paramount-Warner Bros. case is a dispute over the constitutional provision that the U.S. Supreme Court is the only venue in which state governments can sue each other.
That provision was considered to be a reform from the old Articles of Confederation. Under the Articles, fiercely independent state governments, jealous of their power, had no mechanism for settling their disputes. The Articles were replaced by the U.S. Constitution, finalized on September 17, 1787, and put into effect in 1789.
The Constitution created a special kind of case at the Supreme Court – the “Original” case. The most important cases on that docket are disputes between states. It gets its name because the cases at issue start in the Court, as if it were a basic trial court, sorting out both facts and law, and remain there for every phase of review through any final ruling. No other federal or state court can handle such a case.
For decades, and as recently as last May, the Court has refused to grant mandatory review of state v. state cases. Two Justices, Samuel A. Alito, Jr., and Clarence Thomas, have argued for years that the Constitution requires the Court to decide every such dispute. They have so far not attracted the support of other Justices. It would take five Justices’ votes to change the policy.
Iowa’s and Montana’s case against the 12 states that oppose the Paramount-Warner Bros. merger is an “Original” case. Their filing cited the Democratic Party affiliation of the 12 attorneys general who sued and accused them of “abusing antitrust law to score political points.” Noting that the lead state in filing the case is California, the two conservative states said the lawsuit “was filed on their home turf to block a merger with nationwide effect.”
The filing commented: “Economic warfare for political reasons…is an issue states care about.” The two states contend that their economies and residents will suffer if the merger fails. They saidy that the antitrust case “has injected uncertainty into every company that does business with Paramount and Warner Bros.”
The liberal attorneys general told the Supreme Court in their own filing that if Iowa and Montana want to shape the outcome of the proposed merger, they should seek to formally enter the pending case in California federal court.
Iowa and Montana countered that, if they did so, the trial judge would decide to shift the case to the Supreme Court as an “Original” case between states. That, of course, is just where Iowa and Montana want the case to unfold, and they want that soon. They asked the Court to put their complaint on an expedited track.
The Court last week gave the 12 states until September 25 to file a formal answer to the complaint. That is less time than the Court’s rules normally allow – a clear sign that the Court considers the dispute to be important and that it is willing to move promptly.
The Court, of course, will attempt to show that it is not proceeding in a political way to sort out the controversy. But the example already set by the Iowa-Montana filing suggests that, whatever the Court does, political implications will likely show up in the public reaction.
