The Volokh Conspiracy
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Supreme Court Rejects Another Texas Suit under Its Original Jurisdiction, This Time about Water
A 7-1 Supreme Court rejected Texas's claims against New Mexico
The Supreme Court issued two more opinions this morning, one in an argued case and the other in a summary reversal.
In Texas v. New Mexico, a 7-1 Supreme Court rejected Texas's claim that it was owed more water from New Mexico. Like Texas v. Pennsylvania, this was a case that arose under the Supreme Court's original jurisdiction, because it involved a suit by one state against another state.
Justice Kavanaugh wrote for the Court. Justice Alito concurring in the judgment in part and dissenting in part. Justice Barrett did not participate. The dispute focused on which state had to bear the costs of evaporation that occurred when New Mexico temporarily stored water at Texas's request.
The introduction to Justice Kavanaugh's opinion nicely summarizes the details and conclusions:
This is a case about evaporated water. In the southwestern United States, the Pecos River begins near Santa Fe, New Mexico, and winds its way south for hundreds of miles through New Mexico and Texas before flowing into the Rio Grande River on the Texas-Mexico border. The 1949 interstate Pecos River Compact provides for equitable apportionment of the use of the River's water by New Mexico and Texas.
The dispute in this case started in 2014 when a tropical storm hit the Pecos River Basin. To prevent flooding, Texas asked New Mexico to temporarily store water from the Pecos River that would otherwise flow into Texas. New Mexico agreed to do so. A few months later, New Mexico released the water to Texas. But in the interim, some of the water evaporated.
The question presented is straightforward: Under the Pecos River Compact, does New Mexico receive delivery credit for the evaporated water even though that water was not delivered to Texas? The answer is yes. The River Master's Manual, which was approved by this Court in 1988, implements the Compact and speaks directly to this question: When water is stored in New Mexico "at the request of Texas," then New Mexico's delivery obligation "will be reduced by the amount of reservoir losses attributable to its storage." App. to Texas's Motion for Review 37a. Here, the water was stored in New Mexico at the request of Texas, so New Mexico's delivery obligation must be reduced by the amount of water that evaporated during its storage.
For that reason, the River Master awarded New Mexico elivery credit for the evaporated water. We agree with the River Master's determination, and we deny Texas's motion for review.
In a second opinion, in Shinn v. Kayer, the Court summarily reversed a grant of a habeas petition from the U.S. Court of Appeals for the Ninth Circuit under the Anti-Effective Death Penalty Act (AEDPA). This continues the Court's practice of summarily reversing decisions from circuit courts of appeals that, in the Court majority's view, are not sufficiently deferential to state court decisions. Such reversals are particularly common in death penalty cases (which this was), and most often involve decisions from the Ninth and Sixth Circuits. This case also involved a claim of ineffective assistance of counsel, which some circuit courts have been more willing to accept than has the Supreme Court.
As is common with summary reversals, this was an unsigned, per curiam opinion. Justices Kagan, Breyer, and Sotomayor dissented without opinion.
