Page:United States Reports 502 OCT. TERM 1991.pdf/632

 502US2$28N 02-10-99 15:12:54 PAGES OPINPGT

474

WYOMING v. OKLAHOMA Thomas, J., dissenting

tice Scalia, I do not), I would decline to exercise the Court’s original jurisdiction here. The Constitution provides that “[i]n all Cases . . . in which a State shall be a Party, the supreme Court shall have original Jurisdiction.” U. S. Const., Art. III, § 2, cl. 2. Congress, in turn, has provided that “[t]he Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.” 28 U. S. C. § 1251(a). Given these provisions, one might expect—assuming the existence of a “case” or “controversy”—that we would be required to exercise our original jurisdiction here, for a court having jurisdiction generally must exercise it. “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J.). As the Court observes, however, ante, at 450–451, we have exercised discretion in declining to hear cases that fall within the literal terms of our original jurisdiction. See, e. g., United States v. Nevada, 412 U. S. 534, 538 (1973) (per curiam) (controversy between the United States and individual States); Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 497–499 (1971) (action by a State against the citizens of other States). We exercise this discretion even with respect to controversies between two or more States, which fall within our original and exclusive jurisdiction.* See, e. g., Texas v. New Mexico, where, as here, its original jurisdiction is exclusive under 28 U. S. C. § 1251(a). California v. West Virginia, 454 U. S. 1027, 1027–1028 (1981) (opinion dissenting from denial of motion to file bill of complaint). Similarly, commentators have suggested that the Court’s statement that “ ‘the congressional grant of exclusive jurisdiction under § 1251(a). . . requir[es] resort to our obligatory jurisdiction only in appropriate cases’ ” is “an oxymoron.” P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 344 (3d ed. 1988) (quoting Maryland v. Louisiana, 451 U. S. 725, 739 (1981) (internal quotation marks omitted)). See also Shapiro, Jurisdiction and Discretion, 60
 * Justice Stevens has stated that the Court’s explanations for declining to exercise its nonexclusive original jurisdiction are “inapplicable”