No Citizens United Today…
Also, in South Carolina v. North Carolina, the Court came down unanimously in the result, but had a heartwarmingly mishmashed 5-4 split on the reasoning, with Chief Justice Roberts dissenting in part for himself and Justices Thomas, Ginsburg, and Sotomayor.
Thank you, SCOTUS, for giving me the time to prepare for class today!
My reading of this exception differs from yours. Roberts dissents from the report of the special master on a key point regarding who can intervene. And while he concurs in the judgment regarding two of the intervenors, he is fundamentally opposed to the nonstate party intervention. Seems to read like a dissent, not a concurrence. So for me, this one tilts 5-4.
Chief Justice Roberts’s opening and closing comments in his separate opinion do, indeed, read more like a dissent than a concurrence:
The Court correctly rejects the Special Master’s formulation of a new test for intervention in original actions, and correctly denies the city of Charlotte leave to inter- vene. The majority goes on, however, to misapply our established test in granting intervention to Duke Energy Carolinas, LLC (Duke Energy), and the Catawba River Water Supply Project (CRWSP).The result is literally unprecedented: Even though equitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests. Given the importance of maintaining the proper limits on that jurisdiction, I respectfully dissent. […]Our original jurisdiction over actions between States is concerned with disputes so serious that they would be grounds for war if the States were truly sovereign….A dispute between States over rights to water fits that bill; a squabble among private entities within a State over how to divvy up that State’s share does not. A judgment in an equitable apportionment action binds the States; it is not binding with respect to particular uses asserted by private entities. Allowing intervention by such entities would vastly complicate and delay already complicated and lengthy actions. And the benefits private entities might bring can be read- ily secured, as has typically been done, by their participation as amici curiae.In light of all this, it is difficult to understand why the Court grants nonsovereign entities leave to intervene in this equitable apportionment action, and easy to under- stand why the Court has never before done so in such a case.I would grant South Carolina’s exceptions, and deny the motions to intervene.