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Thursday, September 12, 2019

Public Ministers and Original Jurisdiction

Article Three, Section Two of the Constitution provides, in part: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."

Simple question. Has there ever been an original jurisdiction case involving an ambassador, public minister, or consul? I think that the answer is no, but if anyone knows of one I would be much obliged.

Posted by Gerard Magliocca on September 12, 2019 at 03:33 PM | Permalink


Wouldn't diplomatic immunity preclude any case in which the ambassador (or minister or consul) is a defendant? In which case, the court's original jurisdiction, as a practical matter, would be limited to suits initiated by the ambassador.

As to appeals, well, there obviously wouldn't be any, which is inherent in placing original jurisdiction in the Supreme Court. The Court would indeed sit in judgment of its own decisions -- just as the individual justices do now regarding recusals.

Posted by: Steven Lubet | Sep 12, 2019 7:50:47 PM

I posed this same question in 2013:


But what if an Ambassador suffered a tort, or had a breach of contract action, and brought suit in the original jurisdiction of the Supreme Court? Could he demand a jury trial? I think yes.

An even better question. Who would hear an appeal if there are any challenges to the jury selection process? Certainly the Court could not sit in judgment of its own decisions.

And what about a criminal case? What if the United States brought a criminal action against an Ambassador in the Supreme Court’s original jurisdiction? (Or even better, what if the United States brought a suit against an Ambassador in a district court and he insisted that the Supreme Court hear it!?) How would the vicinage clause apply? Would you take jurors from the locus of the case? Or from D.C.? Either way I think you have a vicinage clause problem.

Posted by: Josh Blackman | Sep 12, 2019 4:43:48 PM

Check out "The Original Jurisdiction of the United States Supreme Court," 11 Stanford Law Review 665, 667-68 & 718-19 (1959).

Posted by: Derek Muller | Sep 12, 2019 4:06:16 PM

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