Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP

1 Cite as: 599 U. S. ____ (2023)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
STANLEY WALESKI v. MONTGOMERY, MCCRACKEN,
WALKER & RHOADS, LLP,
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 22–914. Decided June 26, 2023
The petition for a writ of certiorari is denied.
J
USTICE THOMAS, with whom JUSTICE GORSUCH and
J
USTICE BARRETT join, dissenting from the denial of certio-
rari.
In Steel Co. v. Citizens for Better Environment, 523 U. S.
83 (1998), this Court categorically repudiated “the doctrine
of hypothetical jurisdiction,” by which several Courts of Ap-
peals found “it proper to proceed immediately to [a] merits
question, despite jurisdictional objections, at least where (1)
the merits question is more readily resolved, and (2) the
prevailing party on the merits would be the same as the
prevailing party were jurisdiction denied.” Id., at 93–94 (in-
ternal quotation marks omitted). As we explained, this ap-
proach “carries the courts beyond the bounds of authorized
judicial action and thus offends fundamental principles of
separation of powers.” Id., at 94. Since Steel Co., however,
several Courts of Appeals have revived the concept of hypo-
thetical jurisdiction for questions of so-called statutory ju-
risdiction. As the court below put it: “[W]here a question of
statutory (non-Article III) jurisdiction is complex and the
claim fails on other more obvious grounds, we may assume
hypothetical jurisdiction in order to dismiss on those obvi-
ous grounds.” App. to Pet. for Cert. 4a–5a (internal quota-
tion marks omitted); see also Butcher v. Wendt, 975 F. 3d
236, 244 (CA2 2020) (collecting cases). The continued use
of hypothetical jurisdiction is the subject of a longstanding
split of authority. See Friends of Everglades v. EPA, 699

2 WALESKI v. MONTGOMERY, MCCRACKEN, WALKER &
RHOADS, LLP
T
HOMAS, J., dissenting
F. 3d 1280, 1288–1289 (CA11 2012) (Pryor, J.) (rejecting hy-
pothetical jurisdiction); see also Butcher, 975 F. 3d, at 251,
n. 7 (Menashi, J., concurring in part and concurring in judg-
ment) (recognizing the split).
The continued use of hypothetical jurisdiction raises se-
rious concerns. To start, the lower courts’ distinction be-
tween “statutory jurisdiction” and “Article III” jurisdiction
seems untenable. The jurisdiction of federal courts “is lim-
ited both by the bounds of the ‘judicial power’ as articulated
in Article III, §2, and by the extent to which Congress has
vested that power in the lower courts” as required by Article
III, §1. Kaplan v. Central Bank of Islamic Republic of Iran,
896 F. 3d 501, 517 (CADC 2018) (Edwards, J., concurring);
see Sheldon v. Sill, 8 How. 441, 449 (1850) (“Courts created
by statute can have no jurisdiction but such as the statute
confers”). Indeed, Steel Co. itself recognized that questions
of statutory jurisdiction implicate the separation-of-powers
considerations that animated its holding. See 523 U. S., at
101 (“The statutory and (especially) constitutional elements
of jurisdiction are an essential ingredient of separation and
equilibration of powers”); see also Friends of Everglades,
699 F. 3d, at 1288; Butcher, 975 F. 3d, at 246–249 (opinion
of Menashi, J.); Kaplan, 896 F. 3d, at 517–518 (Edwards, J.,
concurring). It thus appears exceedingly difficult to recon-
cile hypothetical statutory jurisdiction with the text and
structure of Article III and this Court’s decision in Steel Co.
See Friends of Everglades, 699 F. 3d, at 1289 (“[A court]
cannot exercise hypothetical jurisdiction any more than [it]
can issue a hypothetical judgment”).
Although “[s]ome cases might cry out for decision on the
merits,” and sometimes it is convenient to assume away dif-
ficult jurisdictional questions to decide a case on easier mer-
its grounds, courts’ “threshold duty to examine [their] own
jurisdiction is no less obligatory in” such cases. Cross-
Sound Ferry Servs., Inc. v. ICC, 934 F. 2d 327, 346 (CADC

3 Cite as: 599 U. S. ____ (2023)
T
HOMAS, J., dissenting
1991) (Thomas, J., concurring in part and concurring in de-
nial of petition for review). “Much more than legal niceties
are at stake here. . . . For a court to pronounce upon the
meaning or the constitutionality of a state or federal law
when it has no jurisdiction to do so is, by very definition, for
a court to act ultra vires.” Steel Co., 523 U. S., at 101–102.
Because the doctrine of hypothetical jurisdiction is the sub-
ject of an entrenched Circuit split and raises fundamental
questions of constitutional law, I would grant the petition
for certiorari.