Making Sense Of The Votes In Mallory v. Norfolk Southern Railway Co.

The decision this term that has the largest potential for a legal "jolt" was Mallory.

Last term, Chief Justice Roberts warned that Dobbs would cause a "serious jolt to the legal system." Which case from the term-that-just-finished caused the most significant jolt? It's not Students for Fair Admissions. Universities will quickly find ways to cheat the ruling and wait to be sued. It will take years to suppress the massive resistance–assuming the Court is committed to the enterprise. And don't say Moore v. Harper. The "strong" version of the Independent State Legislature Doctrine was never going to be approved. At most, a bare majority of the Court would probably adopt Chief Justice Rehnquist's concurrence from Bush v. Gore. (I remain flummoxed why scholars who rejected the existence of the ISL doctrine are claiming victory by a decision that accepted the "weak" version of ISL.) And don't say Allen v. Milligan. That decision, at most, will probably create a few more majority-minority districts in the South, which may flip the House, but the Court did not break much new legal ground.

No, the decision this term that has the potential to create the biggest legal "jolt" was Mallory v. Norfolk Southern Railway Co. The facts are fairly straightforward: Norfolk Southern Railways is headquartered in Virginia; the plaintiff is a citizen of Virginia; the plaintiff allegedly suffered injuries as an employee of the railroad in Virginia and Ohio. But the Plaintiff filed suit in Philadelphia, Pennsylvania. Why? Justice Alito hints at one possible answer: the venue "is reputed to be especially favorable to tort plaintiffs." Of course, that is the plaintiffs' decision. As a general matter, the plaintiff gets to decide where to sue a defendant. But the defendant has defenses–specifically, that a given court lacks personal jurisdiction over the defendant. And that's what Norfolk Southern argued. The railroad is not headquartered in the Pennsylvania, so there is no "general" jurisdiction. And the railroad did not have "minimum contacts" with Pennsylvania, so there is no "specific" jurisdiction. But Pennsylvania has an unusual law: any business that registers to transact business in the state submits to jurisdiction of Pennsylvania state courts. (Or at least this is how the plaintiff reads the statute.)

The conflict is palpable. Norfolk Southern wants to stay out of Philadelphia, which is reputedly favorable to plaintiffs. And Mallory, as Justice Alito suggested, chose that forum deliberately. The stakes of this case could not be greater. If Mallory prevails (and whether he ultimately prevails is still up in the air), every corporation that has registered to do business in Pennsylvania will now be at the mercy of Philadelphia trial courts. And other states can follow-suit: California, Illinois, Washington, and so on. This risk is severe for businesses. (The Washington Supreme Court, in particular, reads the Due Process clause through the lens of anti-racism.)

Mallory prevailed by something of a 5-4 vote. The split here may never repeat itself. Four justices held that the Pennsylvania registration statute complies with the Due Process Clause of the Fourteenth Amendment: Justice Gorsuch, joined by Justices Thomas, Sotomayor, and Jackson. Four Justices held that the statute violates the Due Process Clause: Justice Barrett, joined by Chief Justice Roberts, and Justices Kagan and Kavanaugh. And who was in the middle? Justice Alito. He agreed that Mallory should prevail under Pennsylvania Fire of Philadelphia v. Gold Issue Mining (1917), a very old Due Process precedent that arguably has been obviated by half a century of CivPro cases. He did not join much of Justice Gorsuch's historical analysis. Still, Justice Alito suggested that Pennsylvania's regime violates the Dormant Commerce Clause.  Here, Justice Gorsuch did not give Pennsylvania Fire the Lemon test treatment–no matter how many decisions abrogated that old precedent, it somehow survived.

If we had a "pro-corporation" Court, Mallory should have prevailed by a large vote. Yet Justices Gorsuch, Thomas and (mostly) Alito ruled in favor of Mallory. Why did Justice Alito join the majority in part? I doubt he has any sympathy for Philadelphia trial lawyers. Still, his decision to follow Pennsylvania Fire kept the case alive. And now the lower courts can declare the statute under the Dormant Commerce Clause. If the case returns, after Pork Producers, the Court will now have a chance to further clarify the doctrine, and bring it closer to the original meaning of the Constitution. The upshot of this theory, which Steve Sachs advanced, is that Congress retains the power to regulate interstate commerce, and could impose a nationwide standard on these sorts of registration statutes. But a ruling on the Due Process Clause, however, could only be remedied by constitutional amendment, or a new Supreme Court Justice–whichever comes first.

Next we get to the dissenters. Justice Barrett and Kagan, in particular, taught civil procedure for many years. They can probably recite the holding from International Shoe in their sleep. These cases are so deeply embedded in our law, and in casebooks, that Justice Barrett could not even countenance how Pennsylvania Fire could survive the New Deal. She derisively called the majority's theory "clever." (She also dismissed Eugene Volokh's theory in Hansen as "novel.")  I was piqued by Justice Barrett's suggestion that the Due Process Clause protects interstate federalism. This argument needs some work–it resembles the substantive due process slop that Justice Kennedy ladled in Windsor. The Due Process Clause protects "persons," not states. (Justice Alito's concurrence is exactly correct on this point.) Justice Barrett would not support the majority's "sea change" in the law. But Justice Gorsuch is "happy to see" these precedents go.

In any event, this case may yet return to the Supreme Court. Steve Sachs explained what may come next.