Q: In a recent case, I saw that two states had filed a “bill of complaint” before the Supreme Court. What’s that all about?
A: Great question. First some background: Last week Iowa and Montana came to the Supreme Court, asking the justices to intervene in the dispute over the $110 billion merger between Paramount Skydance and Warner Brothers. But unlike most cases at the Supreme Court, the two states are not seeking review of a lower-court decision. Instead, Iowa and Montana have filed what is known as an “original action”: they want the Supreme Court to weigh in on the legality of the merger in the first instance, and to block an antitrust enforcement action brought by a group of 12 Democratic-led states in a federal trial court in California from going forward.
The dispute is called an “original action” because the Constitution gives the Supreme Court “original Jurisdiction” over cases involving states; Congress later gave the Supreme Court “original and exclusive jurisdiction of all controversies between two or more States.”
Under the Supreme Court’s rules, the procedures for an original action are similar – but not identical – to a petition for review of a lower-court decision. A plaintiff seeking to file an original action files a motion for leave to file a bill of complaint, a bill of complaint (which resembles a complaint that would be filed in a trial court), and (if desired) a brief to support its motion. The defendant then files a brief in opposition 60 days later, after which the plaintiff can (but is not required) to file a reply.
After the court has considered the filings in an original action, its options are (once again) similar but not identical to those for a petition for review. It “may grant or deny the motion, set it for oral argument, direct that additional documents be filed, or require that other proceedings be conducted.” In particular, the Supreme Court often appoints a “special master” (who is usually an experienced attorney or a retired judge) to deal with complicated cases. The special master may gather evidence, review additional briefing from the litigants, and make a recommendation to the justices in a written report.
One major difference between original actions and cases on the court’s “regular” docket is that original actions can last for years, if not decades. For example, in 2013, Texas filed a motion for leave to file a bill of complaint in a water dispute with New Mexico and Colorado. The court appointed a special master in 2014 and heard oral arguments on the objections to the special master’s first interim report in 2018. It appointed a new special master later that year; that special master issued two more interim reports in 2019 and 2023. The court heard oral arguments on the objections to the special master’s third interim report in 2024 and appointed a third special master later that year. In March of this year, the third special master issued an interim report that included a proposed final decree, which the court entered – closing out the case – on May 26.