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.

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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.

NEXT: Did Justice Kagan place a "new gloss" on the Court's personal jurisdiction case law?

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  1. What “process” is “due”? That is a quintessential common law issue — in other words, what seemed “due” in the reign of Henry IV was considered unfair in 1776 and what seemed fine in 1776 is not acceptable to us today. If common law didn’t evolve with people’s sense of right and wrong (“fair play’), it would not be common law.

    For a more disciplined objection to International Shoe, see Hugo Black’s dissent in the original case.

    1. “it would not be common law

      A written Constitution changes things.

      “Due process” under our Constitution now means “common law as of 1789” unless later changed by a later amendment to the Constitution.

      1. Where in the Constitution is the “written” definition of “due process”? For that matter, where does it say that it must be interpreted according to the common law of 1789?

        1. captcrisis, that’s so disingenuous, it’s scary to think about it.

          Creating a constitution was a political process that required parties to agree, with actual voting, on certain terms and conditions to self-bind each other. Further, they agreed on a process that allows for changes without reinterpretation on a whim, again, because it was self-binding and needed votes to agree upon the process.

          Granted, certain things were left undefined on purpose to get agreement (each side thinking that they will get their interpretation) or some things were so self-evident that they didn’t think it needed to be spelled out.

          From your point of view, you should approach your wife or husband and ask to reinterpreted those portions of the marriage contract that are inconvenient to you at the moment.

  2. I have a wide variety of problems with Gorsuch/Thomas style originalism. But one I keep coming back to, which becomes more obvious as Alito ditches some of the pragmatism he showed in U.S. v. Jones, is that a lot of the time it seems like they’re just engaged in completely pointless “UM, Ackshually” contrarianism.

    1. I’m extremely sympathetic to what I think you’re describing as “Gorsuch/Thomas style originalism”, but I agree that’s a very real tendency in Gorsuch’s approach (not so much Thomas), and it’s a big problem.

      1. I mean original public meaning originalism as Thomas and Gorsuch lay it out in their opinions. It’s probably similar to what most people think of as “originalism” but there is probably debate over whether they consistently reach the right results.

        I think there is pointless contrarianism in Thomas’s approach, but I always find his opinions tonally different, so it doesn’t come across that way.

  3. The Gandy comment at the end is quite correct. I am pretty shocked at how hostile liberal academia has been to nondelegation, a doctrine which is both common sense and which can produce either liberal or conservative results.

    1. It’s also completely made up as Bagley and Mortenson persuasively argue.

      1. Well, they argue that Congress did not follow a well defined non-delegation doctrine at the founding. Which is a fair point against non-delegation.

        But if you start from the text, as is in vogue for originalism these days (which admittedly is very easy to use as a basis for justifying just about anything), there is clearly something there, right? People from Jefferson to Marshall have articulated some limits.

        It seems clear Congress cannot simply give the an alternative president the power of the presidency, nor can Congress vest in the president all of Congressional powers.

        The extent of that is up for debate.

        1. Right. It’s not “made up” to say there’s some limit. Can Congress delegate all criminal lawmaking to a Criminal Law Commission with no guidelines? Would you accept that if one of that Commission’s laws threw you in prison for 10 years?

          As I said, it’s common sense. The originalism article didn’t prove it was made up in any sense that any legal rule isn’t made up.

  4. “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.””

    I mean, yes? Why is recoiling at that possibility problematic? I recoil at that possibility … thats insane. Corporations, as we understand them, didn’t exist when the 14th amendment was ratified, and certainly not when the constitution was ratified.

    What exactly is wrong with creating a pragmatic rule in that context? The original meaning can’t be dispositive here, so International Shoe was a pragmatic way of resolving the question with respect to the constitution. It didn’t clearly go against any particular passage of the constitution.

    Saying we should just jettison not because this is a better approach but because if you squint hard enough you get a different answer is ridiculous.

    And there are cases, see Carpenter, where I think Gorsuchs gettison everything approach yields both a more original and more workable approach and might be a good idea.

    But I dong understand how the approach advocated here resolves anything.

    1. I agree with your general point, but to be clear, there were Joint Stock Companies (corporations) at the founding, and multistate corporations at the time the 14A was adopted (railroads, for instance).

      1. Weren’t the joint stock companies at the founding more like port authorities today? Not regular businesses, but chartered groups delegated some special powers by government?

        1. The difference was more subtle than that. There wasn’t anything like the Delaware Secretary of State’s office. You got a corporate charter from a legislative body. But once that happened, it pretty much operated like a modern corporation with limited liability and separation of ownership and control.

          Certainly, the Framers had some experience with the issue of corporate personhood. (And, of course, by the time the 14th Amendment was adopted, there were modern corporations, including multi-state ones.)

          1. A data point on this is the Dartmouth College case (colleges were some of the earliest corporations), decided in by the Supreme Court in 1819. From the opinion:

            “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of the law.”

  5. “The Constitution has always allowed suits against individuals on any issue in any State where they set foot”

    *If* corporations are individuals (and I’m not sure that decision was right) then why should there be any distinction here?

    The other thing is that this is one of the few places where the commerce clause is actually relevant and where Congress should have acted — vehicles are known to move across state lines and to be resold in other states and it’s truly asinine to think that you have to go back to the courts of the state in which the vehicle was originally sold to sue for a manufacturer’s defect when identical vehicles were sold in the state in which the accident occurred.

    There largely been Federal preemption in this, _Bibb v. Navajo Freight Lines, Inc._ (359 U.S. 520 (1959)) comes to mind as well, and the common sense solution is to say that *if* Ford has dealerships in Montana, Ford can be sued in Montana.

    1. This does seem to be the common sense of the matter, but for some reason some people think it’s important whether you say that suing corporations that have dealerships in a state comports with traditional notions of fair play and substantial justice or that the dealerships constitute “presence” in the state and, therefore, you can sue the corporation there.

      1. Initially, a state could only charge sales tax on mail order (and then internet order) companies who had a physical presence in the state. Something like, say, a dealership.

        I don’t see why that principle doesn’t apply here — if nothing else, the state could seize the property rights Ford has in the Montana dealerships. Possibly even including the use of the “Ford” name.

        It’s a different situation — Pan Am Airlines went bankrupt, but their sky-blue paint and logo now decorate freight trains — a railroad bought those rights and now calls itself “Pan Am Railways.”

    2. Look at this a different way — let’s take a real problem that Ford had a while back — vehicles slipping out of Park into Reverse and running over people.

      So Doe owns a used Ford that he/she/it bought from someone who had initially bought it in another state. (Or in Canada — I’ve personally seen Canadian cars sold at the Bangor, ME wholesale auction — the issue is that the odometers measure kilometers rather than miles.)

      Doe’s idling car jumps into gear and runs over Roe, seriously injuring him/her/it. (A car doesn’t have to be going fast if it pins your legs against another car.)

      Roe sues Doe, Doe (or Doe’s insurance company) impleads or subrogates or somethings Ford for defective transmission linkage. Ford’s only liable if this particular vehicle was sold in the state, as opposed to a few hundred thousand identical to it?!?

      That’s asinine…

    3. “it’s truly asinine to think that you have to go back to the courts of the state in which the vehicle was originally sold to sue for a manufacturer’s defect when identical vehicles were sold in the state in which the accident occurred.”

      Finally, I agree with Ed. It is completely reasonable and consistent with precedent that the suit may be brought where the injury occurred. The state of first sale is irrelevant. Even specifying the state of manufacture would make some sense at least

  6. On the issue of Pennoyer v. Neff and Due Process as set out in the 14th Amendment, the lawsuit found defective (Mitchell v. Neff) was decided before the 14th Amendment was in effect so the decision wasn’t based on its application. It is true, though, that the template set forth in Pennoyer became the guide for applying the 14th Amendment to jurisdiction cases.

  7. I wish Justice Gorsuch would do his job and stop complaining.

    “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.'”

    Our 21st century society cannot be bound to 17th century standards and mores.

    1. It’s not even the right question, because no one is asking that except him. The question is what kind of contacts put Ford (and other companies) on notice that they will be haled into court in a particular forum so that procedural due process is satisfied. Now maybe that question is satisfactorily answered with Gorsuch’s understanding of the original understanding. But it’s more than likely answered by the precedent set by all the judges and justices thinking about this question for the last 80 years that lawyers for Ford and others are super familiar with and can advise their client on.

      Pointless contrarianism that’s basically the gunner in law school going: “PeNoYEr wAs ACkshUaLlY RiGhT”

      1. Don’t ever use that meme format again. It suits you very awkwardly.

        1. Only here. My historical and legal views are the mainstream elsewhere.

    2. “Our 21st century society cannot be bound to 17th century standards and mores.”

      Good news, its 18th century standards and mores. 1789 is 18th century.

      Why have a written Constitution at all if we just ignore it?

      1. Bob, we can’t have our forefathers who built this civilization have a say in how it should be run. Imagine the anarchy that will prevail. Each generation needs a new constitutional convention.

        Hold on, someone is whispering to me offstage…….

        Nevermind. Yea, that’s to difficult to do, so we’ll just make shit up as we go along. That sounds about right.

  8. Paul McKaskle
    March.26.2021 at 12:17 pm

    On the issue of Pennoyer v. Neff and Due Process as set out in the 14th Amendment, the lawsuit found defective (Mitchell v. Neff) was decided before the 14th Amendment was in effect so the decision wasn’t based on its application. It is true, though, that the template set forth in Pennoyer became the guide for applying the 14th Amendment to jurisdiction cases.

  9. Originalism — still younger, less popular than, and less important than Kim Kardashian. And likely to have a similar lifespan and long-term consequence.

    1. Artie. Explain to the class how you can have a manufacturing defect in cars older than 20 years. Nothing is stupider than the lawyer.

      1. Except for David Behar

    2. Off point, as usual, clinger.

      1. Originalism “off point” with respect to a post involving originalism?

        Perhaps you should leave the law talk to the lawyers.

        1. Originalism, what used to be called “reading” needed a branding name for itself in response to the “we will torture to the text to make it say what we want it to say” that came out of the Warren Court.

          1. How long, in your judgment, before conservatives’ stale, unpleasant thinking is completely overrun by American progress?

          2. Originalism requires reading far beyond the text in order for it to produce results. Reading of sources that most people don’t have access to or the time to digest and understand. There are also no standards for which sources the judges get to use and no requirement that it make any historical sense or that it give actual meaning to anything in the Constitution.

    3. Paul Brest used used (and likely invented) the term “originalism” to describe “the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters” in his article, “The Misconceived Quest for the Original Understanding”, which was published in the January 1, 1980 edition of the Boston University Law Review. Ms. Kardashian was not born until the following October.

      1. You are correct. Originalism — using Mr. Brest’s writing as the standard — was invented roughly a year before Kim Kardashian was born. It also traces, to some degree, to clingers’ objection to school segregation during the 1950s.

        Still less popular, less known, and less important than Miss Kardashian, though. And it will fade on a similar schedule.

  10. If I followed this correctly, Gorsuch says “original meaning” a bunch of times and says it’d be a great idea if someone figures out what that is?

    1. I hear ya, that’s kinda why he was put there, wasn’t it?

  11. Nothing from the Conspirators with respect to the Georgia voting law changes, but three posts concerning a decision respecting jurisdiction.

    Decent readers should not complain much, though. It has been four days since the conservative law professors who operate this blog published a vile racial slur (for at least the seventh day in six months).

    On the other hand, we’ll be due for another vile racial slur in a few days.

    1. Is there an appellate court decision on the Georgia voting changes? Has anyone even filed a challenge yet?

      If the answer to both of those questions are no, why would you expect it to be covered here?

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