Cite as: 599 U. S. ____ (2023) 1

THOMAS, 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. JUSTICE THOMAS, with whom JUSTICE GORSUCH and JUSTICE 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 THOMAS, 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 Cite as: 599 U. S. ____ (2023) 3

THOMAS, 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.