When the litigation over the invasion of Asian carp into the Great Lakes burst into the news this month, you may have wondered: How did it get to the Supreme Court so fast?
The answer is that Michigan, in its effort to keep the carp from overtaking Lake Michigan, used as its vehicle three original-jurisdiction Supreme Court cases dating back to 1922.
In that year, states surrounding the Great Lakes sued the state of Illinois and the Metropolitan Sanitary District of Chicago to halt the diversion of Great Lakes water by Chicago to flush its sewage into the Mississippi River.
These suits, known then as the "Great Lakes cases," have a rich history, including the appointment by the Court of Charles Evans Hughes, the then-future chief justice, as special master to gather facts and offer a recommendation to resolve the dispute. The cases have remained open ever since. Michigan said the imminent danger of the carp reaching Lake Michigan was within the scope of the original cases. Illinois and the U.S. solicitor general disagree.
It was no surprise that Michigan would use the 90-year-old cases to raise the current controversy, said Noah Hall, professor at Wayne State University Law School, who has written extensively on Great Lakes water issues. "Those cases are the defining source of law for Great Lakes management, not some forgotten artifact," he said.
Before serving as special master, Hughes had already been an associate justice from 1910 to 1916. He left the Court to run for president against Woodrow Wilson and then served as secretary of state from 1921 to 1925. Hughes returned to a lucrative private practice and was appointed special master in 1926 to sort through the complex claims made by the states.
In a 1927 letter to a friend, Hughes said he had taken more than 10,000 pages of testimony in the dispute, adding that "I have been busier and more anxious in my smaller world than when the fate of 'American imperialism' was in my hands."
Interestingly, the question of how much Hughes should be paid by the parties for his work as special master did not come before the Court until Hughes himself had been appointed chief justice in 1930.
It was awkward for Hughes, and he took the matter to the full Court, according to a 1951 biography of Hughes by Merlo Pusey. Hughes told his colleagues he would be "glad to take nothing" for his service. But he worried that would set a precedent for future special masters who might feel obliged to work for free. "Hughes left the room so that his brethren could make their decision unembarrassed by his presence," Pusey wrote. "They fixed his fee at $30,000, plus expenses, and this he 'gladly accepted.' "