March 9th. The State of Kansas lost today in the United States Supreme Court, in a defeat which means that Colorado will not be sending $9m our way to help with the budget crisis. In a unanimous decision, the U.S. Supreme Court decided that the $40 per day limit set by Congress for expert witness fees where costs are awarded, should apply to the long-running dispute between Kansas and Colorado over the Arkansas river. In an artfully worded opinion, Justice Alito made it clear that the Court took no position over whether Congress had the authority to set such a limit in cases in the Court’s original jurisdiction. The Court simply assumed for the sake of argument that Congress could not do such a thing, but nevertheless held that there was no reason for different rules to apply in original jurisdiction cases. The name of the case was Kansas v. Colorado.
Chief Justice Roberts (joined by Justice Souter) penned a brief concurrence stating that Congress does not have the authority to regulate costs in original jurisdiction cases but joining the main opinion because it did not make a holding on this topic.
The result is unsurprising and Justice Alito’s opinion was anticipated by the question he posed to Attorney General Stephen Six at oral argument, as covered here at the time:
“Ultimately the case may come down to a question Justice Alito asked of Six fairly early on in proceedings where he asked what limit, if any, the court should set if Kansas won the argument, and why the Court should not follow the Federal rule on its own authority and set a limit of $40 per day itself. Six never managed to answer this question in a convincing way and a number of the other Justices returned to it asking him what was different about this case compared to non-original jurisdiction cases that would justify a limit higher than $40. In retrospect it seems surprising that for all the preparation put into the case that there was no answer to this question readily available to Six.”
More generally, this case seems to be a textbook example of Chief Justice Roberts’ and Justice Alito’s goal of advancing judicial minimalism. The Court resolved the case at hand, but made no constitutional holdings whatsoever, and made no determination as to whether Congress was attempting to regulate original jurisdiction cases either. In its dicta it made reference to the ‘American Rule’ that litigants should bear their own costs, but neither endorsed not criticized it, thus avoiding dueling concurrences from the liberal and conservative wings of the court.
Attorney General Six thus fails to emulate his predecessor (but one) Phill Kline and win a case at the U.S. Supreme Court. Yet, his office does get a second bite of the cherry, since that Court is still considering its opinion in Kansas v. Ventris where Kansas seeks to overrule the Kansas Supreme Court on a matter of criminal law. Six did not personally argue that case, however.