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

Ford tried to throw both suits away on the grounds that they could only be taken where Ford designed, manufactured or sold the cars. So-called personal jurisdiction is an area of ​​constitutional law that has given companies a home advantage in the past, including defending product liability claims. Given the court’s business-friendly track record in these cases, Ford had reason to be confident about the outcome. Instead, the unanimous decision deviates from the more than 40-year-old, solidly conservative stance of the court.

Judge Amy Coney Barrett did not attend as the case was discussed prior to taking office, but former President Donald Trump’s other decisions – Neil Gorsuch and Brett Kavanaugh – sided with the court progressives and plaintiffs. Kavanaugh fully endorsed the majority opinion of Justice Elena Kagan. To the extent that this confirms the legitimacy of a contested Supreme Court, the 8-0 vote is also a win for Chief Justice John Roberts, as the Court’s reputation for impartiality is important to him. Judges Gorsuch and Alito each wrote different unanimous opinions, with Justice Clarence Thomas Gorsuch joining in. If one of these trios had instead written a dissent, the court could have again appeared more partisan than legal on a legal issue that justified an undisputed solution.

Having once taught civil litigation at Harvard Law School, Kagan has been labeled his opinion as a critical interpretation of that area of ​​law. Personal responsibility arises from the clause on the orderly operation of the fourteenth amendment to the constitution. The idea is that it is unfair for a court to force a defendant outside of the state to defend a lawsuit in that state unless the defendant has made an effort to do business there. Montana and Minnesota Ford had something to offer here: customers. Accordingly, Ford had “advertised, sold and serviced” both of the car models involved in both states for many years. “Ford is encouraging Montanans and Minnesotans to buy their vehicles through all possible means – including billboards, television and radio ads, print and direct mail -” said Kagan. Ford even conceded so much. One might expect that this would be the end of it.

Still, Ford argued that it would be unfair to force it to defend lawsuits in Montana and Minnesota, given that the specific cars involved in the accidents were originally sold in other states and resold as used cars. The Supreme Court has long held – without much definition or explanation – that only contacts that emerge from or relate to the lawsuits can, in fairness, force Ford into Montana and Minnesota. Ford argued that “arising from” should be construed narrowly to mean that only cars made or sold in those states could be held liable in the courts of those states. Kagan refused, concluding that “on” confers a broader liability than a question of personal jurisdiction. Ford’s aggressive marketing and servicing of its cars “could turn any Montana or Minnesota resident into a Ford owner – even if they bought their car from outside the state,” argued Kagan. “If jurisdiction is allowed in these cases, Ford will be treated fairly.”

However, according to the ominous words of the Chamber of Commerce and other business-friendly friends of the Court who have filed briefs in the case, “such a result could put a heavy burden on the business community. . . Corporations cannot structure their businesses to limit the number of jurisdictions in which they can be sued. “Businesses now may need to hire lawyers in more locations around the country to help defend themselves against crime disputes. That costs money – which is what makes the decision of this conservative court so striking.

Compare the 2017 ruling in Bristol-Myers Squibb Co. v Superior Court, in which 86 California residents and 592 non-state plaintiffs sued Bristol-Meyers, California over its blood-thinning drug Plavix, alleging the product damaged their product Health. The group brought product liability, negligent misrepresentation and misleading advertising claims against the company under California law. In a statement penned by Justice Alito, in which all judges except Justice Sonya Sotomayor, including the late Judge Ruth Bader Ginsburg, participated, the court overturned the California Supreme Court and sent the non-California plaintiffs to pack, stressing that they failed to track down a particular pill from California to pharmacies that dispensed the drug in other states. Although Bristol-Meyers Plavix researched, marketed, and sold in California, non-state plaintiffs did not buy or take the drug there, so a majority decided it was unfair for Bristol-Myers to have to defend those suits in California. Recall that the company has already faced the California litigation over the claims of the 86 Californians. It would have been more efficient to have the entire lawsuit in one place than in scattered jurisdictions across the country. Judge Sotomayor replied, “It is not unjust to subject a massive corporation to nationwide conduct that offends both forum residents and non-residents.” However, Bristol-Myers’ motion to dismiss the majority of the claims won the day.

Also in J. McIntyre Mach., Ltd. Against Nicastro, the 2011 Supreme Court dismissed a New Jersey case of a man who injured his hand with a metal clipper in New Jersey. The machine was manufactured in England by a company that used a US dealer as an intermediary. Although the company sent its own representatives to trade shows in several states, the court ruled that the injured plaintiff could not take the lawsuit to his home state because it was unfair to the company. Here’s the kicker: Due to the third-party broker, the company itself hasn’t done much direct business in any state. As a result, England was the most likely forum available – a very expensive proposition for the injured New Jersey man. The court was still on the company’s side.

The debate about the personal jurisdiction of corporate defendants has been limited to the question of whether companies should be vulnerable to lawsuits wherever their products end up as soon as they are placed on the market, or whether they can only do so there be sued where they do targeted business. For the most part, the court chose option two, which allows companies to dismiss lawsuits early and impose additional legal costs on plaintiffs who are consequently forced to sue (if at all) in a narrower menu of forums.

In his separate consensus opinion, Justice Alito stated that “Ford has long had a strong presence in Minnesota and Montana. . . Can anyone seriously argue that it would be fundamentally unfair for Ford to litigate these cases in Minnesota and Montana? “Of course, Alito argued that the majority were doing unnecessary verbal forging – but he did so without pointing out the big company’s financial concerns.

Justice Gorsuch agreed with Alito that the majority over-parsed personal jurisdiction standards and complained that “[w]here is anything but clear to us. “That has been the problem with personal jurisdiction law for decades. it’s mushy. But that very bruise could have allowed Conservative judges to buy Ford’s claims that its business model would suffer if those cases continued in Montana and Minnesota. Instead, Gorsuch noted that companies “have long sought ways to circumvent such rules,” lamenting that “this court ended up being a… Receptive audience.” Gorsuch stuck to his roots as an originalist, adding: “[t]The parties have indicated nothing in the original meaning or history of the Constitution that would enable Ford to evade responding to plaintiff’s claims in Montana or Minnesota courts. “He noted that” there are… Reasons to wonder if the case law we have developed… Is well suited to the way business is done now. “

What is different about Ford Motor Co. is that all of the conservative judges in the court have agreed on the outcome. Note that Kavanaugh drafted a statement for the court in 2019 resolving a product liability case in favor of two Navy veterans who developed asbestos-related cancer from exposure to equipment on ships. Gorsuch, Thomas and Alito disagreed. That same year, Kavanaugh issued a 5-4 ruling for the court – over Gorsuch’s dissenting opinion from Roberts, Thomas, and Alito – allowing iPhone owners to sue Apple for allegedly unlawful monopoly of the aftermarket for iPhone apps. These cases concerned issues other than Ford Motor Co., but after last week the ideological divide may not look as great.

It’s too early to say whether conservatives in court will follow Ford Motor Co.’s neutral stance in avoiding political stereotypes when making difficult decisions on particularly controversial issues. The Personal Jurisdiction Act hardly attracts public attention – or anger – such as voting rights, abortion, LGBTQ rights, and the like. But there may now be some measure of relief – if not cold comfort – for progressives to know that partiality will not always rule the day in this Supreme Court.

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