Time to Rethink the Supreme Court’s Interstate Waters Jurisprudence
This October Term, the U.S. Supreme Court will be asked to weigh in on three and possibly all four of its pending original jurisdiction controversies over interstate waters. The Court’s past judgments and opinions have established little in the way of “federal common law” governing the states’ interests in shared waters. But they have established this much: these interests vest in states-as-states directly under the U.S. Constitution, even if the Court itself is reluctant to specify the interests with much precision or to enjoin violations thereof. Ultimately, and perhaps ironically, if it is states’ “equal dignity” that animates their interests in shared waters, it may be time for the Court to help other courts to adjudicate these interests through more ordinary channels than the extraordinary precincts of the Supreme Court’s original jurisdiction.