The Volokh Conspiracy

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Waiting for the Other International Shoe to Drop

Justice Gorsuch and Thomas cast doubt on the canonical case, and seek to restore the original understanding of the 14th Amendment.


The vote in Ford Motor Co. v. Montana Eighth Judicial Dist. was 5-3. Justice Kagan wrote the majority opinion, which was joined by the Chief Justice, and Justices Breyer, Sotomayor, and Kavanaugh. (Justice Barrett did not participate.) Justice Alito concurred in the judgment. He suggested that the majority opinion put a new "gloss" on personal jurisdiction caselaw. Justice Gorsuch wrote a separate concurrence, which was joined by Justice Thomas. Justice Gorsuch wrote a very Gorsuch opinion: he cast doubt on International Shoe Co. v. Washington (1945). Yes, the canonical case that every 1L struggles with.

Justice Gorsuch begins his analysis with a throwback to Pennoyer v. Neff (1878).

Before International Shoe, it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court's competency normally depended on the defendant's presence in, or consent to, the sovereign's jurisdiction. But once a plaintiff was able to "tag" the defendant with process in the jurisdiction, that State's courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State. Pennoyer v. Neff, 95 U. S. 714, 733 (1878).

In a footnote, Justice Gorsuch favorably cites the work of co-blogger Steve Sachs, who writes that Pennoyer was right. And in the same footnote, Gorsuch cites Justice Robert Jackson. Pretty good company to be in.

Recent scholarship, for example, contends Pennoyer's territorial account of sovereign power is mostly right, but the rules it embodies are not "fixed in constitutional amber"—that is, Congress might be able to change them. Sachs, Pennoyer Was Right, 95 Texas L. Rev. 1249, 1255 (2017). Others suggest that fights over personal jurisdiction would be more sensibly waged under the Full Faith and Credit Clause. Jackson, Full Faith and Credit—The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 3 (1945). Whether these theories are right or wrong, they at least seek to answer the right question—what the Constitution as originally understood requires, not what nine judges consider "fair" and "just."

Justice Kagan claps back at Justice Gorsuch. She writes that Gorsuch doesn't even attempt to figure out what that original meaning is:

The other concurrence proposes instead a return to the mid-19th century—a replacement of our current doctrine with the Fourteenth Amendment's original meaning respecting personal jurisdiction. Post, at 9−10 (GORSUCH, J., concurring in judgment). But that opinion never reveals just what the Due Process Clauseas understood at its ratification required, and its ground for deciding these cases is correspondingly spare. Post, at 11. This opinion, by contrast, resolves these cases by proceeding as the Court has done for the last 75 years—applying the standards set out in International Shoe and its progeny, with attention to their underlying values of ensuring fairness and protecting interstate federalism.

Gorsuch returns the volley, and offers a full-throated defense of originalism:

The majority worries that the thoughts expressed here threaten to "transfigure our specific jurisdiction standard as applied to corporations" and "return [us] to the mid-19th century." Ante, at 7, n. 2; ante, at9, n. 3. But it has become a tired trope to criticize any reference to the Constitution's original meaning as (somehow) both radical and antiquated. Seeking to understand the Constitution's original meaning is part of our job.

Amen. Next, Gorsuch adopts a very populist tenor. He criticizes Kagan for defending corporate privilege. The dynamics here seem backwards.

What's the majority's real worry anyway—that corporations might lose special protections? The Constitution has always allowed suits against individuals on any issue in any State where they set foot. Supra,at 8–9. Yet the majority seems to recoil at even entertaining the possibility the Constitution might tolerate similar results for "nationwide corporation[s]," whose "business is everywhere." Ante, at 2; ante, at 9, n. 3.

Ultimately, Gorsuch says next-to-nothing about the original meaning of the 14th Amendment. But he hopes others do.

The parties have not pointed to anything in the Constitution's original meaning or its history that might allow Ford to evade answering the plaintiffs' claims in Montana or Minnesota courts. . . .The real struggle here isn't with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe's increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of theConstitution's text and the lessons of history. 

Justice Gorsuch's Gundy dissent triggered the academy to argue that the non-delegation doctrine is inconsistent with original meaning. As I type, a legion of scholars are researching whether International Shoe is consistent with the original meaning of the Fourteenth Amendment. I'm sure John Bingham said something about "traditional notions of fair play and substantial justice." After all, the past decade has taught me that the only jurisprudence faithful to original meaning are those decisions rendered between 1937 and 1981. Everything else is judicial activism. I'm waiting for the originalist International Shoe to drop.