Page:United States Reports 502 OCT. TERM 1991.pdf/620

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WYOMING v. OKLAHOMA Scalia, J., dissenting

never been plagued by a shortage of these suits brought by private parties, and that the nontextual elements of the Commerce Clause have not gone unenforced for lack of willing litigants. Today, however, when the coal companies with sales allegedly affected by the Oklahoma law have, for whatever reason, chosen not to litigate, the Court sees fit, for the first time, to recognize a State’s standing to bring a negative Commerce Clause action on the basis of its consequential loss of tax revenue. That is a major step, and I think it is wrong. Even if it were correct, however, summary judgment that Wyoming suffered consequential loss of tax revenue in the present case would be unjustified. I would deny Wyoming’s motion for summary judgment and grant Oklahoma’s. I At the outset, let me address briefly the Court’s suggestion that our previous rejections of Oklahoma’s standing objections—when we granted Wyoming leave to file its complaint and when we denied Oklahoma’s motion to dismiss for want of standing—somehow impede us from considering that objection today. Ante, at 446. To begin with, the “law-of-thecase principles” which the Court suggests should be persuasive albeit not necessarily binding in original actions, ibid., have never to my knowledge been applied to jurisdictional issues raised (or reraised) before final judgment. To the contrary, it is a court’s obligation to dismiss a case whenever it becomes convinced that it has no proper jurisdiction, no matter how late that wisdom may arrive. See Fed. Rule Civ. Proc. 12(h)(3) (“Whenever it appears . . . that the court lacks jurisdiction of the subject matter, the court shall dismiss the action”) (emphasis added). See also Jenkins v. McKeithen, 395 U. S. 411, 421 (1969). Of course, this does not mean that a court need let itself be troubled by the same jurisdictional objection raised over and over again, when it has thoroughly considered that issue once and remains convinced that it resolved the issue correctly. But that is quite