U.S. Supreme Court

Chief Justice Practices Special Master Diplomacy in Water Intervenor Dissent

In a 5-4 decision, the U.S. Supreme Court has allowed a utility and a water supply company to intervene in a dispute over water rights between two states.

Chief Justice John G. Roberts Jr. partially dissented in an opinion that gives a shout out to special masters, despite disagreeing with a special master’s recommendation to allow intervenors in the case.

Roberts’ opinion follows a controversial comment he made during oral arguments in which he downplayed the special master’s authority. At the time, the National Law Journal reported, he made this comment: “This is our original jurisdiction. I regard the special master as more akin to a law clerk than a district judge. We don’t defer to an aide that we have assigned to help us gather things here.”

The legal dispute involves North Carolina’s plan to allow two Charlotte suburbs to pump up to 10 million gallons a day from the Catawba River. South Carolina had opposed the interveners, the Associated Press reports. The Supreme Court was hearing the case as a matter of original jurisdiction because the dispute is between two states.

The Supreme Court ruled that Duke Energy and the Catawba River Water Supply Project could intervene, but the city of Charlotte could not because its interests were represented by North Carolina. In the majority opinion (PDF), Justice Samuel A. Alito Jr. wrote that the standard for intervention by nonstate entities in original jurisdiction cases is high, but not insurmountable.

Roberts, on the other hand, had another view. He said the court should not have allowed any of the parties to intervene.

“The result is literally unprecedented,” Roberts wrote. “Even though equitable apportionment actions are a significant part of our original docket, this court has never before granted intervention in such a case to an entity other than a state, the United States, or an Indian tribe. Never.”

Roberts was more diplomatic in addressing the role of special masters, however. He noted that the Supreme Court is not well-suited to take on the role of a trial judge. “We have attempted to address that reality by relying on the services of able special masters, who have become vitally important in allowing us to manage our original docket,” he said. “But the responsibility for the exercise of this court’s original jurisdiction remains ours alone under the Constitution.”

Roberts’ dissent was joined by Justices Clarence Thomas, Ruth Bader Ginsburg and Sonia Sotomayor.

Additional coverage:

Herald Online: “Supreme Court allows Duke into Catawba River water fight”

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