Samuel Alito’s Culture-War Warning – The Wall Street Journal

The California law bars the use of public funds for travel to any of the 12 states on the list. Texas explained in its petition last year that at least two academic conferences in Houston were disrupted as students and scholars from California’s public universities couldn’t get funding. Politicians have had to use campaign funds rather than state dollars to travel to cities like Nashville in boycotted Tennessee.

Texas said such travel restrictions violate the Commerce Clause, which limits the ability of states to discriminate economically against their peers. It asked the Justices to invoke their original jurisdiction to block California’s economic coercion.

The Justices on Monday turned Texas down, but Justice Samuel Alito, in a dissent joined by Justice Clarence Thomas, argued that the Court should settle more such disputes. He explained that states treating other states as essentially hostile foreign powers could undermine the bargain that makes the Constitution work.

If Texas and California hadn’t joined the United States in the 19th century, he wrote, “it is entirely possible that their dispute would be the source of considerable international tension.” Yet the Constitution is designed to hold the states together despite their political differences by channeling conflict through the federal government. Instead California is trying to interfere directly in Texas policy.

“When they entered the Union, these two behemoths relinquished the full measure of sovereign power that they once possessed,” Justice Alito continued, “but they acquired the right to have their disputes with other States adjudicated by the Nation’s highest court.”

In its brief urging the Court not to adjudicate the dispute, California argued that it could be handled in lower courts, such as if Texas businesses harmed by California’s boycott filed suit. It pointed to precedent that the Supreme Court’s exclusive jurisdiction—known as “original” jurisdiction—over state suits against other states “will not be exerted in the absence of absolute necessity.”

We doubt all Justices who punted on this case are confident in the constitutionality of California’s economic bullying. Yet a sufficient number may believe that this is not yet a moment of “absolute necessity” that compels jurisdiction. The danger is that by failing to take a stand early, the Justices will make such a moment more politically fraught and more likely.