An Evolving Court
The New York Times mentions Professor Barton Thompson Jr. for his role as special master in the Supreme Court case, Montana v. Wyoming, on the states' dispute over rights to Yellowstone River tributaries:
During oral argument about Montana v. Wyoming this month, the Supreme Court was doing something rare: it was in session as a trial court and its task was to decide how to divvy up water from tributaries to the Yellowstone River.
The Constitution gives the court “original jurisdiction” in cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” as in the water case. These cases have a musty aura, but the opposite is true. They are an example of how the court’s understanding of the Constitution is persistently evolving, with few paying any attention.
The special master, Barton Thompson Jr., a Stanford law professor, agrees with Wyoming, and his view makes good sense. The compact sets the amount of water that can be diverted, not consumed. As long as the water Wyoming takes isn’t wasted, it’s that state’s to use. At the hearing, some justices seemed taken aback by the either-or choice. Justice Stephen Breyer asked, “There’s no way to read this contract — this compact — so it’s share and share alike?” Still, a majority of the justices are likely to agree with Professor Thompson.