This sleeper case has emerged as one of the most important decisions of the term. It is a doubly rare bird: a surprising blow to the business bar that is rooted in an unusually rigorous application of originalism.
On Tuesday, Justice Neil Gorsuch—joined by Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Ketanji Brown Jackson—shot down the railroad’s defense, finding no due process violation. Gorsuch’s opinion rested on three basic points. First, the Supreme Court
a law roughly identical to Pennsylvania’s, which ordered corporations to consent to jurisdiction as a condition of doing business in the state. True, that decision was in 1917. But the court’s more recent rulings, like’s “fair play and substantial justice” morass, did not overrule that precedent; they merely supplemented it.Amendment, as understood in 1868.
of state laws from the period that mirror Pennsylvania’s. This approach obviously persuaded Gorsuch that the pro-corporateparadigm of today does not align with the “original and historic understandings of due process,” while Pennsylvania’s law does.“fairness” was the touchstone of jurisdiction, Mallory should still prevail, because there is nothing unfair about suing Norfolk Southern in Pennsylvania.
“boasting” of the company’s presence in the commonwealth. And he noted that it “proclaimed itself a proud part of ‘the Pennsylvania Community,’” with more miles of track there than any other state.Gorsuch was trolling here, wielding Norfolk Southern’s own promotional puffery against it. But behind the mockery lay a deeper point: The court’s modern fixation on “fairness” for corporate defendants leads to deeply unfair results.
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