Kansas v. Colorado
The Supreme Court ruled that Kansas, despite winning its decades-long water dispute with Colorado, could not collect the roughly $9 million in actual expert-witness costs it wanted, and was instead limited to the modest $40-per-day witness fee that Congress set for ordinary federal court cases.
The Court said that even if it had discretion to set its own rule for cases filed directly with it, fairness favored treating states no differently than parties in regular federal courts, which are held to the same low cap.
How it got here: A Special Master appointed by the Court ruled that a $40-per-day federal fee cap applied to Kansas's expert-witness costs, and Kansas filed an exception asking the Court to overturn that ruling.
The Case in Depth
What happened
Kansas sued Colorado in 1985 in a case filed directly with the Supreme Court, claiming Colorado's irrigation wells violated an interstate water-sharing agreement called the Arkansas River Compact. After years of proceedings, Colorado was found to have violated the compact, and by the case's final stage the only remaining dispute was how much Kansas could recover for the expert witnesses it hired to prove its case.
The question before the Court
When Kansas won a long-running water dispute with Colorado, could it collect its full expert-witness costs, or was it capped at the $40-a-day fee federal law sets for regular court cases?
The Court's answer
No — Kansas could not recover its full roughly $9 million in expert-witness costs. The Court assumed, without actually deciding, that Kansas was right that Congress never regulated witness fees in cases filed directly with the Supreme Court, and that the Court itself gets to choose the rule for such cases. Even so, the Court chose to apply the same $40-per-day cap that Congress set for ordinary federal court cases.
The Court reasoned that there was no good reason to give parties in Supreme-Court cases a more generous fee rule than parties in regular federal trial courts, since both types of cases can be equally complex and equally expensive to litigate. A single, uniform nationwide rule made more sense than treating the Supreme Court's own docket as special.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling means states and other parties who sue directly in the Supreme Court (rather than in a lower federal court) cannot expect to recover the real cost of hiring expert witnesses, even after years of expensive litigation. It keeps witness-fee recovery rules consistent across all federal courts, discouraging parties from expecting a bigger payout just because their case happened to start at the Supreme Court.
What changes now
The Court's ruling resolves the last outstanding dispute in this decades-long water case, clearing the way for entry of the proposed final judgment and decree implementing the earlier rulings against Colorado. The $40-per-day witness fee cap now applies uniformly to future cases filed directly with the Supreme Court, unless Congress or the Court itself later revisits the question the Court expressly left open here.
What this does not decide
The Court expressly did not decide whether Congress has actually tried to regulate witness fees in cases filed directly with the Supreme Court, or whether the Constitution would even allow Congress to do so. It only decided that, assuming the Court has free choice, it would pick the same $40 rule Congress uses elsewhere.
Concurrences and dissents
Concurrence — Justice Roberts
Chief Justice Roberts joined the majority fully but stressed that he did so only because the opinion carefully avoided limiting the Supreme Court's own authority over its original-case procedures. He emphasized that, unlike its appellate jurisdiction, the Court's original jurisdiction is not subject to congressional regulation, so the choice of a $40 fee here was the Court's own decision, not one dictated by Congress.
How the Court got there
The legal reasoning, step by step
- The Court avoided deciding the harder constitutional and statutory questions Kansas raised — whether Congress ever tried to cap witness fees in cases filed directly with the Supreme Court, and whether Article III would even let Congress do so — and instead assumed, purely for the sake of argument, that Kansas was right on both points.
- Starting from that assumption, the Court asked what fee rule it should adopt using its own discretion, since Kansas argued the Court alone controls procedure in cases filed directly with it.
- The Court noted that Congress's existing $40-per-day cap for ordinary federal court witnesses is a modest departure from the 'American Rule,' the general principle that each side in litigation normally pays its own costs and fees rather than shifting them to the loser.
- The Court found no meaningful difference in complexity or expense between cases filed directly with the Supreme Court and equally complex cases filed in ordinary federal trial courts, undercutting any reason to give Supreme Court litigants a more generous fee rule.
- Concluding that a single, uniform witness-fee rule across all federal litigation was the better policy, the Court adopted the $40-per-day cap as the rule for cases filed directly with it as well.