After its customary four-week, mid-winter recess, the Supreme Court re-starts its hearing schedule tomorrow, focusing on a long-running feud between Florida and George. Only one case is set for hearing Monday. As it has done for months, because of the pandemic, the Court will continue to hold its hearings remotely. Again, it will broadcast the audio portion (not the video), and the broadcast will be available at c-span.org/supreme court
Hearing scheduled for one hour, starting at 10 a.m.
Florida v. Georgia
Background: Hydraulic engineering is a fascinating subject, but one does not have to be trained in that field to understand two things about rivers: they flow from higher to lower elevations, and when people upstream use the water, that limits what the people downstream can do with it. Sorting out who gets the water, as the Supreme Court regularly does, can be a very complex question of law, technology, economics and even human behavior. Often, states that share a river work out their rights to use it. Usually, that is done by jointly agreeing to an “interstate compact,” which must have Congress’ approval.
But sometimes the states fall into a dispute over water rights, and that’s when the Supreme Court is asked to step in.
The Supreme Court uses a special process when it settles state-versus-state legal disputes, a process that has been spelled out in the Constitution since the beginning. Article III specifies that, when two or more states get into a legal dispute, only the Supreme Court can decide it. That’s what is called an “Original” case: that is, it can start only in the Court; it does not involve an appeal from a lower court.
Before 1787, such disputes were quite common, as the jealously-independent states fought over their boundaries. Under the Articles of Confederation, there were no federal courts to referee those fights, so Congress tried to work them out. As with most things under the Articles, Congress did a bad job of that. The Founders in Philadelphia in writing the Constitution handed the task to the newly created Supreme Court.
In modern times, fights over where a border lies do not arise often, but states still get into disputes with each other. Most recently, for example, the state of Texas tried to file an “Original” case in the Supreme Court, in an attempt to have the Justices undo Joe Biden’s presidential election wins in four other states. The Court wouldn’t allow it – demonstrating, once again, that it believes that the Constitution gives it almost complete discretion to allow, or disallow, an Original case to go forward.
The most famous Original case in American history is, of course, Marbury v. Madison. That did not involve a fight between states; the dispute was over a right to a government appointment. The 1803 decision brought the Court’s first claim to the power to strike down laws that conflicted with the Constitution (the concept known more broadly as “judicial review”).
Because Original cases start (and go to conclusion) only in the Supreme Court itself, it handles them very much as if it were a trial court: that is, the proceedings include witnesses and evidence and then a verdict. But the Justices for years have entrusted the task of gathering the evidence to an individual they select, a “Special Master” (usually, a prominent lawyer or a judge, retired or still active).
The Master tries the case, and then recommends a decision. Reacting to the Master’s report, the two sides return to the Supreme Court by filing “exceptions” to that report, or endorsing it. Those filings function as appeals, and full briefing and a hearing before the Justices follow. Only the Supreme Court itself has power to make the final decision. Typically, such cases take years to process.
That drawn-out process is again on display, as the Justices on Monday turn, for a second time, to the case of Florida v. Georgia. Florida first filed the case in 2013. At its core, the case is simple: Florida is downstream from Georgia, and it claims that Georgia is using more than its fair share of the waters in rivers within Georgia that flow down to supply Florida’s Apalachicola River. Florida wants the Court to approve a formula to “equitably apportion” the waters at issue, including a cap on how much water Georgia may use upstream.
Two Georgia rivers, the Chattahoochee and the Flint, run downstream to meet at the Florida border to form Lake Seminole. From the lake, Florida’s Apalachicola River flows through the Florida panhandle, into the Gulf of Mexico. That river, low in saline and high in nutrients, nourishes a rich ecosystem of many species and provides the waters necessary to sustain the state’s oyster industry.
Georgia resists the Florida claim, contending that it is making fair use of its rivers to provide drinking water for the large metropolitan area of Atlanta and to sustain the irrigation of Georgia’s farm fields.
Before Florida could win the case, and get a cap put on Georgia’s water uses, it has to show that it is suffering real and substantial harm from the shortage of water that it claims it is receiving, and it must show that Georgia is to blame.
The Special Master in 2017 recommended that the Court rule against Florida, finding that the state had failed to show that any injury it had suffered could be blamed legally on Georgia. In a prior ruling in 2018, the Supreme Court ruled by a 5-4 vote that the Master had used too strict a standard for judging the harm and the cause, and returned the case to the Master to gather more facts.
In a new report sent to the Court in late 2019, a different Special Master again sided with Georgia, suggesting that the Court rule that Georgia’s uses of the waters of the Chattahoochee and the Flint were fair and reasonable. The harm to oysters in Florida, that report found, was due to drought conditions and to harvesting too many oysters.
The federal government has an interest in the case because the Army Corps of Engineers operates a series of dams which hold back in four reservoirs some of the Chattahoochee’s waters in Georgia. It could open those dams to let more water go downstream to Florida, if the Court were to order Georgia to reduce its use of the waters. The Justice Department continues to take part in the case, even though Florida says it has no complaint about how the Corps of Engineers controls the flows out of the reservoirs. The Justices appear to have a keen interest in how any decision would affect the Corps’ management of its dams.
The questions before the Court: Did the Special Master require Florida to meet too rigorous a burden in its attempt to show its injury and to show that Georgia was to blame? Was the Master wrong in suggesting approval of Georgia’s uses of the waters, in finding that Florida would not benefit from restrictions on Georgia, in concluding that the Corps of Engineers would not release enough water to satisfy Florida’s needs, in suggesting that Georgia would suffer harm from limits on its uses of the river waters, and in refusing to allow new evidence to replace stale findings in the case’s record?
Significance: Because Original cases like this one are fundamentally keyed to the specifics of the dispute, they do not often result in significant or sweeping new legal pronouncements by the Court. It is possible in this case that the Court may further clarify the standard of what a state must prove to show its right to a court-ordered allotment of shares of river waters, but even that would be largely confined to the intersection of law, geography and river science.
In an attempt to broaden the scope and the potential significance of its case, Florida has added a plea that a failure by the Court to fashion a remedy in this case would diminish its constitutional role as an arbiter of state-versus-state controversies. This dispute is the very kind of controversy for which Original cases were created in Article III, Florida argued. Georgia did not bother to respond to that point.
The Court very likely will resolve the dispute this time, rather than ordering any further development of it by the Special Master.
The 5-4 split when the Court issued its first ruling on this legal fight almost three years ago does not bode well for Florida.
In that decision, the four dissenters would have ended the case with a ruling against Florida, without any further development of facts. It seems unlikely that they would be more sympathetic after a second Special Master’s report went against Florida.
Moreover, of the five Justices in the majority in 2018, and voting to keep the case alive, only three remain on the Court; the other two – the late Justice Ruth Bader Ginsburg and now-retired Justice Anthony M. Kennedy – were replaced by Justices who might be more inclined to join with the previous dissenters in finding Florida’s complaint unpersuasive.
