Two Easy Cases?Michael Ramsey

The Supreme Court heard two potentially big constitutional cases today, with most observers apparently foreseeing easy reversals of the lower courts.  In DaimlerAG v. Bauman, the Ninth Circuit held found personal jurisdiction to sue a German company (Daimler) in California for wrongs allegedly done in Argentina; the only connection with California is that the German company has a subsidiary that does business in the state.  That was enough to satisfy due process, said the lower court, but the Justices seem unconvinced.  As Lyle Denniston at SCOTUSblog reports, Justice Sotomayor asked Daimler's counsel toward the end of the argument, "Do you care how you win?"; in Denniston's account, there may not be even one vote to affirm.

The other big case argued today is Schuette v. Coalition to Defend Affirmative Action, in which the Sixth Circuit found unconstitutional a Michigan law barring the use of racial criteria in public university admissions.  According to the lower court, the law violates the equal protection clause by making it harder for minorities to argue for preferential treatment, as compared to non-racial groups such as athletes, legacies, or those bringing geographic or economic diversity.  Here Lyle Denniston's account makes it seem there are three votes to affirm (with Justice Kagan not participating), but only three.  And even Emily Bazelon at Slate thinks it's a weak case: The Michigan Experiment: The affirmative action case liberals deserve to lose.

Are these easy cases?  I say yes and no.  As to Schuette, this seems to be a case where the doctrine has gotten away from the text.  Doctrine is needed to implement text -- perhaps even doctrine that may not be fully derivable from original meaning.  Mostly, equal protection doctrine does this (if you think that the equal protection clause enacts a non-discrimination principle).  But sometimes doctrine takes on a life of its own, producing results that not only don't implement the text but affirmatively contradict it.  That seems to have happened here -- the Sixth Circuit's decision rests on a not-implausible view of the "political process doctrine," which in turn arose from some earlier Supreme Court cases.  But in terms of text, I have a hard time seeing a lack of equality.  Under the Michigan law, no person's race may be take into account in admission, and everyone's other attributes (athletic ability, life experience, etc.) can be.  That seems like equal treatment to me.  The relevant comparison isn't between an applicant who wants race taken into account and an applicant who wants athleticism taken into account; it's among applicants who want race taken into account.  All of the latter are treated the same.

Daimler seems harder, even though the obviously-forum-shopping plaintiffs aren't very sympathetic.  If California says to Daimler "You can only do business here if you agree to be sued for wrongs you commit anywhere," why does that violate due process?  Daimler can choose to do business in California or not, but it doesn't have a right to do business in California.  And the fact that Daimler did its California business through a subsidiary doesn't seem to change the analysis; equally, it seems, California can say that a foreign corporation can't use subsidiaries to evade jurisdiction, and again Daimler can just stay out of California if it doesn't like that rule.  I see nothing unfair about putting Daimler to that choice, and in any event I see no procedural injury.

Perhaps there is some historical account of due process suggesting that violations could arise from unreasonable conditions on doing business, but I don't think anything like that has been demonstrated.  And if it hasn't, the Court to reverse will have to issue another of the sort of rulings that has made personal jurisdiction a mess, saying that Bauman's claim to jurisdiction seems "unfair" for ill-defined and poorly-generalized reasons.

But I still think perhaps Daimler should win.  The essential fairness problem is this:  the California jurisdictional statute says that jurisdiction can be exercised to the extent permitted by due process.  No one knows what due process means in this context (indeed, the Ninth Circuit initially went the other way before reversing itself).  So Daimler was not given the choice mentioned above.  It had no idea whether operating in California through a subsidiary would make it subject to suit for wrongs committed anywhere.

What this case really suggests, though, is the need for more originalist-oriented scholarship on the civil procedure aspects of the due process clause.  Everyone wants to write about the clause's substantive aspects, or its criminal procedure aspects, or its constraint on executive power.  What about its constraint on courts?  The area seems, at best, poorly understood.  Even for those who are not fully-blown originalists, it would seem helpful for courts and litigants to have some anchor in the text's original meaning.