But I just reread the clause, and it seems clear that the Constitution does not give the Congress a right to append a comment like 28 sec. 1251 (b) - it changes the meaning of the word "shall" in this context. The exclusivity seems implicit - but Congress is making the assertion that unless explicit, they have the right to open up the field to the lower courts.
The statute seems to thus twist the nature of the original statement, and in so doing diminishes the role of the Supreme Court, and appears to be redistributing power in a way not envisioned in the original document.
I understand your statement that it did not take away their right to try the case, but rather simply extended such right to lower courts.
With that said, then, what would prevent Arizona at this point from bypassing the 9th and simply going to the SCOTUS?
This is not a little case. If the Supreme Court "is not interested in hearing these cases", then what in God's name will get their attention? Debates over convertible debentures?
This is way beyond Mariana Pfaelzer and 187. THAT was a lawsuit initiated by private groups against the State of California. THIS is a lawsuit initiated by the FEDERAL government against a STATE over a duly debated law passed by the Legislature, signed by the Governor! It is a major initiative with International implications, and the sovereign rights of a State at issue!
Does it need "sharpening"? Do they have to wait till gunfire erupts?
I'm from Tucson. I can safely tell you that NONE of the things that have happened there in the last week EVER happened before --- thousands of Mexican irredentists and their sympathizers rioting for the "Right" to occupy American territory? A terrorist incident on Interstate 17 involving a blockade of the highway?
In 1965 this would have been a shooting war at this point. Seriously. Please believe me, I don't know where you live or have lived, but I can tell you that in Arizona, such a thing is very close now. It isn't a diluted, deracinated place like California or New York.
Exclusivity has never been considered “implicit.”
The grant of some types of concurrent original jurisdiction goes back all the way to the Judiciary Act of 1789.
Take your complaint to President Washington and the First United States Congress.
By the way, there is no question but that this case will ultimately be decided by the highest court in the land.
The pleadings and briefs in the district court and court of appeals are not chopped liver.
All of the parties hitting the law books at each step of the way makes sure the issues get out on the table and fully explored more than if there was just the one set of briefs and oral argument in only one court level, and then a final decision given.