Until recently I did four posts a day here. Now on most weeks I do only three. But I shall retain my old practice of doing a four-part discussion of the just-ended term of the US Supreme Court here each year in early July. The easiest way to do this is to write the introductory panel first, and the more granular three panels the following week.
There have, on the other hand, been important decisions this term I will not discuss. For example, I won't discuss the end-of-term decision about affirmative action in higher education. However consequential, the arguments made by the parties, and the Justices, are not intellectually provoking, so I will let them be.
Furthermore, I am not going to take up the question of the ethics issues in the Thomas household. Some people are exercised about Thomas's penchant for living the high-life off billionaire "friends." I call them friends only in quotation marks because these "friends" had no use for him at all until he became a Supreme Court Justice. The relevant idea of friendship is much too transactional for me. Still, the brouhaha may leave Thomas pining for the good old days, when the household's biggest legal issue was his relationship with Ginni, and what Ginhni was doing for work. At any rate, you won't encounter any more references here.
Such arbitrary exclusions notwithstanding, we have a heck of a lot of ground to cover. Some of my choices will appear -- and will be -- idiosyncratic. Deal with it, this is my blog!
One oddity of this last session was that the Court seemed to take so long to get going. It issued almost no full-dress decisions at all until quite late in the term, making the usual late-term rush of decisions much more severe than is the custom.
Another (more personal) oddity. One of those later term decisions reminded me of my write-on casenote from my law school days. When I was in law school there were two different ways of getting on the law review. The highest grade point average folks were automatically invited to take posts. Other spaces were filled by a writing competition. All the interested parties for the write-in slot were given the same recent decision of the Supreme Court and told to write it up.
When I did this, the object of the competition was RUSH v. SAVCHUK (1980). one of the high court's rare ventures into the world of personal jurisdiction. The question there was: can a state (Minnesota) acquire personal jurisdiction over a defendant by the attachment of the contractual obligations of an insurer licensed in the state?
The answer: no. Justice Thurgood Marshall wrote the decision to that effect for a 7-2 majority. I won't discuss the reasoning. I will only say that the leisurely pace with which a 1972 car crash, in Indiana, made its way through various courts up to the highest court in 1980 inspired me to use this subheading, deep into my casenote: "No Rush to Judgment."
Amazingly, I got the position regardless of the pun.
I was reminded of that triumph this term. The Supreme Court has returned to the issue of personal jurisdiction, in MALLORY v. NORFOLK SOUTHERN. https://www.supremecourt.gov/opinions/22pdf/21-1168_kifl.pdf
Justice Gorsuch wrote for the court. Justice Barrett wrote for the minority. This case was more evenly split that the Rush case was: it was a 5-4 vote. The majority upheld against due process argument a Pennsylvania law that allows personal jurisdiction against corporate defendants registered there. The court, then, took an expansive view of Pennsylvania's authority to hear a case with only a formal connection to Pennsylvania. The court in 1980 had taken a narrow view on such a point. The two cases are not directly at odds, but there is a nice symmetry to them, at least to my nostalgic eyes.
The Pennsylvania registration law is not entirely out of the jurisprudential woods, though. [A pun on the etymology of the name of the state.] This vote was in an important sense 4-1-4. The expansive view of state-court jurisdiction won because of Justice Alito's concurrence. Alito said: yes, the due process challenge to the statute fails, and that is the only challenge before us, so for now the statute stands. But ... corporations who don't like the law might consider bringing a challenge to it under the dormant commerce clause instead.
The world of personal-jurisdiction nerds is meanwhile satisfied. Dormant commerce clause addicts will have to wait. In the meantime, his concurrence won Alito the prerogative of heading up this blog post with his smiling face.
Let us say something about the dormant commerce clause, since Alito has me on the subject. The standard doctrine is at heart against state protectionism. A state cannot protect local widget manufacturers from competition by creating burdens that make life difficult for importers of widgets. The commerce clause is interpreted as akin to NAFTA or the EU, creating a common market, with a stronger economy that a bunch of adjacent but mutually walled-off entities could have.
The first analytic step is whether a regulation does in fact discriminate. Regulation of widgets isn't in itself discriminatory, and the out-of-state widgeteers can't demand relief from evenly applied regulation simply because they are engaged in interstate commerce: THAT would clearly be protectionist.
If the statute is in fact discriminatory, the state has to show both that there are valuable purposes served by its statute and that there is no way of achieving that good purpose without the discrimination. This year a California statute concerned with animal welfare passed those tests against a dormant commerce clause challenge brought by pork producers. Nearly all the pork sold in California comes from out of state; there isn't much of an in-state industry to protect. So it was never prima facie plausible that the legislation at issue was a case of protectionism.
At any rate: how does one imagine Pennsylvania's corporate-registration requirement would fare under this test? If it prejudices anyone, it prejudices corporations that are only incidentally present in Pennsylvania. They may feel some burden by having to defend themselves in a non-core territory. But the Norfolk has yards in Johnstown, Allentown, and Harrisburg. One of those cities has its own Billy Joel song. Perhaps more germane: Norfolk's in-state track is extensive. I don't feel up to researching total mileage, but here is an interactive map for those who feel industrious. I don't believe that there is a strong case that the law in question discriminates against interstate commerce in its application to this defendant by forcing it to defend itself in some ghastly place that would otherwise seem to its executives and lawyers like a distant irrelevant hinterland. The case that jurisdiction-creating registration CAN be unduly burdensome should be made by some other litigant. In time it surely will be.
Finally, allow me to recite what we will do next week.
Tuesday, we will look at the high court's role as the interpreter of federal statutes. We will begin THAT discussion with the student loan relief case. Some of the statutes at issue: the Fair Labor Standards Act, the Securities Act, and (re those student loans) the Higher Education Relief Opportunities Act. We'll also get to say a few words about Andy Warhol and intellectual property.
On Wednesday, we'll turn to a mix of constitutional issues. We'll range from capital punishment to separation of powers and to freedom of religion.
Finally, on Thursday, we will treat of issues that arise from sovereignty itself. Who the sovereign is and how the sovereign makes up its mind what it wants. We will start with Indian law, which is founded on ambivalence about the continued sovereignty of tribes. Then I proceed to the issue of voting rights, the surprise of this session. There is an old conflict between voting rights on the one hand and the self-interest of gerrymandering state legislators on the other. In that conflict, the legislators took some well-deserved hits this spring.
As Oliver Wendell Holmes almost certainly never said, Be there or be square!
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