Opinion | The Supreme Court Isn’t as Conservative as You Think

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In a little-noticed 8-0 decision, the Supreme Court just lodged a blow to large corporations. The rare, unanimous outcome marked a distinctly progressive pivot on a thorny jurisdictional question that has bedeviled plaintiffs in corporate liability cases for decades.

But the most significant effect of the decision might be the message it sends that the court, with its decisive 6-3 conservative majority, is not condemned to predictably partisan splits.

Ford Motor Co. v. Montana Eighth Judicial District Court consolidated two cases brought in connection with accidents involving vehicles manufactured by the Ford Motor Company. The plaintiffs alleged that Ford was at fault, and brought the cases in the states where the accidents occurred and the motorists had resided: Montana and Minnesota. The Montana resident was killed when a tread separated from a rear tire of her 1996 Explorer, causing the SUV to land upside down in a ditch. The Minnesota resident suffered serious brain damage when, while a passenger in a 1994 Crown Victoria, his airbag failed to deploy after the driver rear-ended a snow plow.

Ford tried to get both suits thrown out on the rationale that they could only be brought where Ford designed, manufactured or sold the cars; personal jurisdiction, as it is known, is an area of constitutional law that historically has given corporations a home-field advantage when defending product liability claims, among others. Given the court’s pro-business track record in these cases, Ford had reason to be sanguine about the outcome. Instead, the unanimous ruling departed from the court’s solidly conservative trajectory stretching back over 40 years.

Justice Amy Coney Barrett did not participate, as the case was argued before she came on the court, but former President Donald Trump’s other Supreme Court picks—Neil Gorsuch and Brett Kavanaugh—sided with the court’s progressives and the plaintiffs. Kavanaugh fully joined Justice Elena Kagan’s majority opinion. To the extent that it shores up the legitimacy of an embattled Supreme Court, the 8-0 vote is also a win for Chief Justice John Roberts because the Court’s reputation for impartiality matters to him. Justices Gorsuch and Alito each wrote separate concurring opinions, with Justice Clarence Thomas joining Gorsuch. Had any one of this trio instead penned a dissent, the court could have, yet again, appeared more partisan than judicial on a legal question that warranted resolution without controversy.

Having once taught civil procedure at Harvard Law School, Kagan’s opinion sings as a critical interpretation of this area of the law. Personal jurisdiction stems from the Due Process Clause of the Constitution’s Fourteenth Amendment. The idea is that it’s unfair for a court to force an out-of-state defendant to defend a lawsuit in that state unless the defendant has taken pains to do business there. Here, Montana and Minnesota had something to offer Ford: customers. Ford had accordingly “advertised, sold and serviced” both car models involved in the accidents in both states for many years. “By every means imaginable—among them, billboards, TV and radio spots, print ads and direct mail—Ford urges Montanans and Minnesotans to buy its vehicles,” Kagan explained. Ford even conceded as much. One might expect that would be the end of the matter.

Still, Ford argued that it would be unfair to force it to defend lawsuits in Montana and Minnesota because the specific cars involved in the accidents were originally sold in other states and resold as used cars. The Supreme Court has long established—without much definition or explanation—that only contacts that “arise out of or relate to” the lawsuits can fairly force Ford into Montana and Minnesota. Ford argued that “arise out of” should be narrowly construed to mean that only the cars made or sold in those states can give rise to liability in the courts of those states. Kagan demurred, concluding that “relate to” confers broader liability as a matter of personal jurisdiction. Ford’s aggressive marketing and service of its cars “might turn any resident of Montana or Minnesota into a Ford owner—even when he buys his car from out of state,” Kagan reasoned. Thus, “allowing jurisdiction in these cases treats Ford fairly.”

To be sure, in the ominous words of the Chamber of Commerce and other pro-business friends of the Court who filed briefs in the case, such a result could “inflict severe burdens on the business community . . . making it impossible for corporations to structure their affairs to limit the number of jurisdictions in which they can be sued.” Companies might now have to hire lawyers in more places in the country to defend against tort litigation. That costs money—which is what makes the decision from this conservative-leaning court so striking.

Compare the 2017 ruling in Bristol-Myers Squibb Co. v. Superior Court, in which 86 California residents and 592 out-of-state plaintiffs sued Bristol-Meyers in California over its blood-thinning drug, Plavix, claiming that the product damaged their health. The group brought products liability, negligent misrepresentation and misleading advertising claims against the company under California law. In an opinion authored by Justice Alito—and joined by every justice except Justice Sonya Sotomayor, including the late Justice Ruth Bader Ginsburg—the court reversed the California Supreme Court and sent the non-California plaintiffs packing, emphasizing their failure to trace a particular pill from California to the pharmacies that dispensed the medicine in other states. Although Bristol-Meyers researched, marketed and sold Plavix in California, the out-of-state plaintiffs didn’t purchase or ingest the drug there, so a majority decided it was unfair for Bristol-Myers to have to defend those suits in California. Keep in mind that the company was already stuck with the California litigation for the claims brought by the 86 Californians. Arguably, it would have been more efficient to keep the entire lawsuit in one place, rather than in scattered jurisdictions across the country. Justice Sotomayor retorted that “there is nothing unfair about subjecting a massive corporation to suit in a state for a nationwide course of conduct that injures both forum residents and nonresidents alike.” Yet Bristol-Myers’s motion to dismiss the bulk of the claims won the day.

In J. McIntyre Mach., Ltd. v. Nicastro, as well, the Supreme Court in 2011 dismissed a case brought in New Jersey by a man who injured his hand using a metal-shearing machine in New Jersey. The machine was manufactured in England by a company that used a U.S. distributor as an intermediary. Although the company sent its own representatives to trade shows in several states, the court held that the injured plaintiff couldn’t bring the lawsuit in his home state because it was unfair to the corporation. Here’s the kicker: By virtue of the third-party intermediary, the company itself didn’t do much direct business in any state. As a result, the likeliest available forum was England—a very expensive proposition for the injured New Jersey man. The court still sided with the company.

The personal jurisdiction debate involving corporate defendants has boiled down to the question of whether, on the one hand, companies should be susceptible to lawsuits wherever their products wind up once they are placed in the stream of commerce or, on the other, whether they can only be sued where they specifically reach out to do business. For the most part, the court has picked option two, enabling corporations to get lawsuits thrown out early, putting additional litigation expenses on plaintiffs who are consequently forced to sue (if at all) within a narrower menu of forums.

In his separate concurring opinion, Justice Alito figured that “Ford has long had a heavy presence in Minnesota and Montana . . . Can anyone seriously argue that requiring Ford to litigate these cases in Minnesota and Montana would be fundamentally unfair?” To be sure, Alito quibbled that the majority had engaged in unnecessary word-smithing—but he did so without a nod to the financial concerns of big business.

Justice Gorsuch agreed with Alito that the majority parsed the personal jurisdictional standard too finely, complaining that “[w]here this leaves us is far from clear.” That’s been the problem with the law of personal jurisdiction for decades; it’s squishy. But that squishiness is precisely what could have enabled the conservative justices to buy Ford’s claims that its business model would suffer if these cases went forward in Montana and Minnesota. Gorsuch instead noted that corporations have long “looked for ways around rules like these,” and bemoaned that “this Court eventually provided a . . . receptive audience.” Adhering to his originalist roots, Gorsuch added that “[t]he parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiff’s claims in Montana or Minnesota courts.” He posited that “there are . . . reasons to wonder whether the case law we have developed . . . is well suited for the way in which business is now conducted.”

What’s different about Ford Motor Co. is that all of the conservative justices on the court agreed on the outcome. Consider that in 2019, Kavanaugh wrote an opinion for the court resolving a products liability case in favor of two Navy veterans who developed asbestos-related cancer from exposure to equipment on ships; Gorsuch, Thomas and Alito dissented. The same year, Kavanaugh delivered a 5-4 decision for the court—over Gorsuch’s dissenting opinion joined by Roberts, Thomas and Alito—holding that iPhone owners can sue Apple for allegedly unlawfully monopolizing the aftermarket for iPhone apps. Those cases involved different issues than Ford Motor Co., but after last week the ideological divide may no longer look as stark.

It’s too soon to tell whether conservatives on the court will follow the neutral trajectory of Ford Motor Co. by eschewing political stereotypes when making hard decisions on especially controversial subjects. Personal jurisdiction law hardly garners the public’s attention—or ire—like voting rights, abortion, LGBTQ rights, and the like. But for progressives, there may now be some measure of relief—if not cold comfort—in knowing that partisanship will not always carry the day with this Supreme Court.

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