Mallory v. Norfolk Southern R. Co , 600 U.S. 122 ( 2023 )

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122 OCTOBER TERM, 2022
Syllabus
MALLORY v. NORFOLK SOUTHERN RAILWAY CO.
certiorari to the supreme court of pennsylvania,
eastern district
No. 21–1168. Argued November 8, 2022—Decided June 27, 2023
Robert Mallory worked for Norfolk Southern as a freight-car mechanic for
nearly 20 years, frst in Ohio, then in Virginia. After he left the com-
pany, Mr. Mallory moved to Pennsylvania for a period before returning
to Virginia. Along the way he was diagnosed with cancer. Because
he attributed his illness to his work at Norfolk Southern, Mr. Mallory
sued his former employer under the Federal Employers' Liability Act,
45 U. S. C. §§ 51–60, a federal workers' compensation scheme permitting
railroad employees to recover damages for their employers' negligence.
Mr. Mallory fled his lawsuit in Pennsylvania state court. Norfolk
Southern—a company incorporated in Virginia and headquartered
there—resisted the suit on the basis that a Pennsylvania court's exercise
of personal jurisdiction over it would offend the Due Process Clause of
the Fourteenth Amendment. Norfolk Southern noted that when the
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complaint was fled, Mr. Mallory resided in Virginia, and the complaint
alleged that Mr. Mallory was exposed to carcinogens only in Ohio and
Virginia. Mr. Mallory pointed to Norfolk Southern's presence in Penn-
sylvania, noting that Norfolk Southern manages over 2,000 miles of
track, operates 11 rail yards, and runs 3 locomotive repair shops in
Pennsylvania. In fact, Norfolk Southern has registered to do business
in Pennsylvania in light of its “ ``regular, systematic, [and] extensive' ”
operations there. 266 A. 3d 542, 562; see 15 Pa. Cons. Stat. § 411(a).
And Pennsylvania requires out-of-state companies that register to do
business in the Commonwealth to agree to appear in its courts on “any
cause of action” against them. 42 Pa. Cons. Stat. § 5301(a)(2)(i), (b).
By complying with this statutory scheme, Mr. Mallory submitted, Nor-
folk Southern had consented to suit in Pennsylvania on claims just like
his.
The Pennsylvania Supreme Court sided with Norfolk Southern.
That court found that the Pennsylvania law—requiring an out-of-state
frm to answer in the Commonwealth any suits against it in exchange for
status as a registered foreign corporation and the benefts that entails—
violates the Due Process Clause.
Held: The judgment is vacated, and the case remanded. This case is con-
trolled by Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue
Mining & Milling Co., 243 U. S. 93. Much like the Missouri law that
the Court in Pennsylvania Fire found to comport with the Due Process
Cite as: 600 U. S. 122 (2023) 123
Syllabus
Clause, the Pennsylvania law at issue here provides that an out-of-state
corporation “may not do business in this Commonwealth until it regis-
ters with” the Department of State. 15 Pa. Cons. Stat. § 411(a).
Among other things, Pennsylvania law is explicit that “qualifcation as
a foreign corporation” shall permit state courts to “exercise general per-
sonal jurisdiction” over a registered foreign corporation, just as they
can over domestic corporations. 42 Pa. Cons. Stat. § 5301(a)(2). Nor-
folk Southern has complied with this law since 1998, when it registered
to do business in Pennsylvania. Norfolk Southern applied for a “Cer-
tifcate of Authority” from the Commonwealth which, once approved,
conferred on Norfolk Southern both the benefts and burdens shared by
domestic corporations, including amenability to suit in state court on
any claim. For more than two decades, Norfolk Southern has agreed
to be found in Pennsylvania and answer any suit there.
Pennsylvania Fire held that suits premised on these grounds do not
deny a defendant due process of law. Mr. Mallory no longer lives in
Pennsylvania and his cause of action did not accrue there. But none of
that makes any difference. To decide this case, the Court need not
speculate whether any other statutory scheme and set of facts would
suffce to establish consent to suit. It is enough to acknowledge that
the state law and facts before the Court fall squarely within Pennsylva-
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nia Fire's rule.
In the proceedings below, the Pennsylvania Supreme Court seemed
to recognize that Pennsylvania Fire dictated an answer in Mr. Mal-
lory's favor but ruled for Norfolk Southern because, in its view, inter-
vening decisions from this Court had “implicitly overruled” Pennsylva-
nia Fire. See 266 A. 3d, at 559, 567. That was error. As this Court
has explained: “If a precedent of this Court has direct application in a
case,” as Pennsylvania Fire does here, a lower court “should follow the
case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.” Rodriguez de Quijas v. Shearson/Amer-
ican Express, Inc., 490 U. S. 477, 484. This is true even if the lower
court thinks the precedent is in tension with “some other line of deci-
sions.” Ibid. Pp. 134–136.
266 A. 3d 542, vacated and remanded.
Gorsuch, J., announced the judgment of the Court, delivered the opin-
ion of the Court with respect to Parts I and III–B, in which Thomas,
Alito, Sotomayor, and Jackson, JJ., joined, and an opinion with respect
to Parts II, III–A, and IV, in which Thomas, Sotomayor, and Jackson,
JJ., joined. Jackson, J., fled a concurring opinion, post, p. 147. Alito,
J., fled an opinion concurring in part and concurring in the judgment, post,
p. 150. Barrett, J., fled a dissenting opinion, in which Roberts, C. J.,
and Kagan and Kavanaugh, JJ., joined, post, p. 163.
124 MALLORY v. NORFOLK SOUTHERN R. CO.
Counsel
Ashley Keller argued the cause for petitioner. With him
on the briefs were Warren Postman, Matthew A. Seligman,
Daniel C. Levin, Frederick S. Longer, and Zina Bash.
Carter G. Phillips argued the cause for respondent. With
him on the brief were Tobias Loss-Eaton, Ralph G. Welling-
ton, Bruce P. Merenstein, Daniel B. Donahoe, and Ira L.
Podheiser.
Deputy Solicitor Gannon argued the cause for the United
States as amicus curiae urging affrmance. With him on
the brief were Solicitor General Prelogar, Principal Deputy
Assistant Attorney General Boynton, Vivek Suri, Sharon
Swingle, and Joshua M. Koppel.*
*Briefs of amici curiae urging reversal were fled for the Academy of
Rail Labor Attorneys by Lawrence M. Mann, William L. Myers, Jr., and
Robert E. Myers; for the American Association for Justice by Jeffrey R.
White; for the Center for Auto Safety et al. by Larry E. Coben and Mi-
chael Brooks; for the Pennsylvania Association for Justice by Ruxandra
M. Laidacker and Charles L. Becker; and for Public Citizen by Scott L.
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Nelson and Allison M. Zieve. Briefs of amici curiae urging vacatur
were fled for Civil Procedure Professors by Alan B. Morrison; and for
Stephen E. Sachs by Mr. Sachs, pro se.
Briefs of amici curiae urging affrmance were fled for the Common-
wealth of Virginia by Jason S. Miyares, Attorney General of Virginia,
Chuck Slemp, Chief Deputy Attorney General, Andrew N. Ferguson, So-
licitor General, Erika L. Maley, Principal Deputy Solicitor General, Lucas
W. E. Croslow, Deputy Solicitor General, and Annie Chiang, Assistant
Solicitor General, and by the Attorneys General for their respective States
as follows: Treg Taylor of Alaska, Leslie Rutledge of Arkansas, Lawrence
G. Wasden of Idaho, Todd Rokita of Indiana, Austen Knudsen of Montana,
John Formella of New Hampshire, and Alan Wilson of South Carolina; for
the Association of American Railroads by Thomas H. Dupree, Jr., Jacob
T. Spencer, and Daniel Saphire; for the Atlantic Legal Foundation by Law-
rence S. Ebner; for the Chamber of Commerce of the United States of
America et al. by Peter B. Rutledge and Jennifer B. Dickey, Mark Beh-
rens, and Richard Pianka; for the DRI Center for Law and Public Policy
et al. by Zach Chaffee-McClure; for the National Association of Manufac-
turers et al. by Philip S. Goldberg and Linda E. Kelly; for the Pennsylva-
nia Coalition for Civil Justice Reform et al. by James M. Beck; for the
Washington Legal Foundation by John M. Masslon II and Cory L. An-
drews; for Lea Brilmayer by Scott A. Eisman, Timothy P. Harkness,
Cite as: 600 U. S. 122 (2023) 125
Opinion of the Court
Justice Gorsuch announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I and III–B, and an opinion with respect to Parts II,
III–A, and IV, in which Justice Thomas, Justice Soto-
mayor, and Justice Jackson join.
Imagine a lawsuit based on recent events. A few months
ago, a Norfolk Southern train derailed in Ohio near the Penn-
sylvania border. Its cargo? Hazardous chemicals. Some
poured into a nearby creek; some burst into fames. In the
aftermath, many residents reported unusual symptoms.1
Suppose an Ohio resident sued the train conductor seeking
compensation for an illness attributed to the accident. Sup-
pose, too, that the plaintiff served his complaint on the con-
ductor across the border in Pennsylvania. Everyone before
us agrees a Pennsylvania court could hear that lawsuit
consistent with the Due Process Clause of the Fourteenth
Amendment. The court could do so even if the conductor
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was a Virginia resident who just happened to be passing
through Pennsylvania when the process server caught up
with him.
Now, change the hypothetical slightly. Imagine the same
Ohio resident brought the same suit in the same Pennsylva-
nia state court, but this time against Norfolk Southern. As-
sume, too, the company has fled paperwork consenting to
appear in Pennsylvania courts as a condition of registering
to do business in the Commonwealth. Could a Pennsylvania
court hear that case too? You might think so. But today,
Linda H. Martin, and David Y. Livshiz; and for Tanya Monestier by
Sean Marotta.
Briefs of amici curiae were fled for Scholars on Corporate Registration
and Jurisdiction by Andrew S. Pollis; for United Policyholders by George
M. Plews, Peter M. Racher, Kevin M. Toner, Christopher E. Kozak, and
Richard B. Oatis; and for U. S. Terror Victims by Eric Citron.
1
See U. S. Environmental Protection Agency, East Palestine, Ohio Train
Derailment (June 21, 2023), https://www.epa.gov/east-palestine-oh-train-
derailment.
126 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
Norfolk Southern argues that the Due Process Clause enti-
tles it to a more favorable rule, one shielding it from suits
even its employees must answer. We reject the company's
argument. Nothing in the Due Process Clause requires
such an incongruous result.
I
Robert Mallory worked for Norfolk Southern as a freight-
car mechanic for nearly 20 years, frst in Ohio, then in Vir-
ginia. During his time with the company, Mr. Mallory con-
tends, he was responsible for spraying boxcar pipes with
asbestos and handling chemicals in the railroad's paint shop.
He also demolished car interiors that, he alleges, contained
carcinogens.
After Mr. Mallory left the company, he moved to Pennsyl-
vania for a period before returning to Virginia. Along the
way, he was diagnosed with cancer. Attributing his illness
to his work for Norfolk Southern, Mr. Mallory hired Pennsyl-
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vania lawyers and sued his former employer in Pennsylvania
state court under the Federal Employers' Liability Act, 35
Stat. 65, as amended, 45 U. S. C. §§ 51–60. That law creates
a workers' compensation scheme permitting railroad employ-
ees to recover damages for their employers' negligence. See
Norfolk Southern R. Co. v. Sorrell, 549 U. S. 158, 165–166
(2007).
Norfolk Southern resisted Mr. Mallory's suit on constitu-
tional grounds. By the time he fled his complaint, the com-
pany observed, Mr. Mallory resided in Virginia. His com-
plaint alleged that he was exposed to carcinogens in Ohio
and Virginia. Meanwhile, the company itself was incorpo-
rated in Virginia and had its headquarters there too.2 On
these facts, Norfolk Southern submitted, any effort by a
Pennsylvania court to exercise personal jurisdiction over it
would offend the Due Process Clause of the Fourteenth
Amendment.
2
After Mr. Mallory commenced this suit, Norfolk Southern relocated its
headquarters to Georgia. See Brief for Respondent 5.
Cite as: 600 U. S. 122 (2023) 127
Opinion of the Court
Mr. Mallory saw things differently. He noted that Norfolk
Southern manages over 2,000 miles of track, operates 11 rail
yards, and runs 3 locomotive repair shops in Pennsylvania.
He also pointed out that Norfolk Southern has registered to
do business in Pennsylvania in light of its “ ``regular, system-
atic, [and] extensive' ” operations there. 266 A. 3d 542, 562
(Pa. 2021); see 15 Pa. Cons. Stat. § 411(a) (2014). That is
signifcant, Mr. Mallory argued, because Pennsylvania re-
quires out-of-state companies that register to do business in
the Commonwealth to agree to appear in its courts on “any
cause of action” against them. 42 Pa. Cons. Stat. § 5301(a)
(2)(i), (b) (2019); see 266 A. 3d, at 564. By complying with
this statutory scheme, Mr. Mallory contended, Norfolk
Southern had consented to suit in Pennsylvania on claims
just like his.
Ultimately, the Pennsylvania Supreme Court sided with
Norfolk Southern. Yes, Mr. Mallory correctly read Pennsyl-
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vania law. It requires an out-of-state frm to answer any
suits against it in exchange for status as a registered foreign
corporation and the benefts that entails. Id., at 561–563.
But, no, the court held, Mr. Mallory could not invoke that
law because it violates the Due Process Clause. Id., at 564–
568. In reaching this conclusion, the Pennsylvania Supreme
Court acknowledged its disagreement with the Georgia Su-
preme Court, which had recently rejected a similar due proc-
ess argument from a corporate defendant. Id., at 560, n. 13
(citing Cooper Tire & Rubber Co. v. McCall, 312 Ga. 422, 863
S. E. 2d 81 (2021)).
In light of this split of authority, we agreed to hear this
case and decide whether the Due Process Clause of the Four-
teenth Amendment prohibits a State from requiring an out-
of-state corporation to consent to personal jurisdiction to do
business there. 596 U. S. ––– (2022).3
3
The Pennsylvania Supreme Court did not address Norfolk Southern's
alternative argument that Pennsylvania's statutory scheme as applied
here violates this Court's dormant Commerce Clause doctrine. See 266
128 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
II
The question before us is not a new one. In truth, it is a
very old question—and one this Court resolved in Pennsyl-
vania Fire Ins. Co. of Philadelphia v. Gold Issue Mining &
Milling Co., 243 U. S. 93 (1917). There, the Court unani-
mously held that laws like Pennsylvania's comport with the
Due Process Clause. Some background helps explain why
the Court reached the result it did.
Both at the time of the founding and the Fourteenth
Amendment's adoption, the Anglo-American legal tradition
recognized that a tribunal's competence was generally con-
strained only by the “territorial limits” of the sovereign that
created it. J. Story, Commentaries on the Confict of Laws
§ 539, pp. 450–451 (1834) (Story); see also United States v.
Union Pacifc R. Co., 98 U. S. 569, 602–603 (1879). That
principle applied to all kinds of actions, but cashed out differ-
ently based on the object of the court's attention. So, for
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example, an action in rem that claimed an interest in immov-
able property was usually treated as a “local” action that
could be brought only in the jurisdiction where the property
was located. 3 W. Blackstone, Commentaries on the Laws
of England 117–118, 294 (1768). Meanwhile, an in personam
suit against an individual “for injuries that might have hap-
pened any where” was generally considered a “transitory”
action that followed the individual. Id., at 294. All of
which meant that a suit could be maintained by anyone on
any claim in any place the defendant could be found. Story
§ 538, at 450.
American courts routinely followed these rules. Chief
Justice Marshall, for one, was careful to distinguish between
local and transitory actions in a case brought by a Virginia
plaintiff against a Kentucky defendant based on a fraud per-
petrated in Ohio. Massie v. Watts, 6 Cranch 148, 162–163
A. 3d, at 559–560, nn. 9, 11. Nor did we grant review to consider that
question. Accordingly, any argument along those lines remains for con-
sideration on remand.
Cite as: 600 U. S. 122 (2023) 129
Opinion Gorsuch, J.
(1810). Because the action was a transitory one that fol-
lowed the individual, he held, the suit could be maintained
“wherever the [defendant] may be found.” Id., at 158, 161–
163; see also, e. g., Livingston v. Jefferson, 15 F. Cas. 660,
663–664 (No. 8,411) (CC Va. 1811) (opinion of Marshall, C. J.);
Peabody v. Hamilton, 106 Mass. 217, 220–221 (1870); Bissell
v. Briggs, 9 Mass. 462, 468–470 (1813).
This rule governing transitory actions still applies to natu-
ral persons today. Some call it “tag” jurisdiction. And our
leading case applying the rule is not so old. See Burnham
v. Superior Court of Cal., County of Marin, 495 U. S. 604(1990). The case began with Dennis Burnham's business
trip to California. Id., at 608 (plurality opinion). During
his short visit, Mr. Burnham's estranged wife served him
with a summons to appear in California state court for di-
vorce proceedings. Ibid. This Court unanimously ap-
proved the state court's exercise of personal jurisdiction over
Mr. Burnham as consistent with the Due Process Clause—
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and did so even though the Burnhams had spent nearly all
their married life in New Jersey and Mr. Burnham still re-
sided there. See id., at 607–608, 616–619; id., at 628 (White,
J., concurring in part and concurring in judgment); id., at
635–639 (Brennan, J., concurring in judgment); id., at 640(Stevens, J., concurring in judgment).
As the use of the corporate form proliferated in the 19th
century, the question arose how to adapt the traditional rule
about transitory actions for individuals to artifcial persons
created by law. Unsurprisingly, corporations did not relish
the prospect of being haled into court for any claim any-
where they conducted business. “No one, after all, has
ever liked greeting the process server.” Ford Motor Co. v.
Montana Eighth Judicial Dist. Court, 592 U. S. –––, –––
(2021) (Gorsuch, J., concurring in judgment). Corporations
chartered in one State sought the right to send their sales
agents and products freely into other States. At the same
time, when confronted with lawsuits in those other States,
some frms sought to hide behind their foreign character
130 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
and deny their presence to defeat the court's jurisdiction.
Ibid.; see Brief for Petitioner 13–15; see also R. Jackson,
What Price “Due Process”?, 5 N. Y. L. Rev. 435, 438 (1927)
(describing this as the asserted right to “both be and not
be”).
Lawmakers across the country soon responded to these
stratagems. Relevant here, both before and after the Four-
teenth Amendment's ratifcation, they adopted statutes re-
quiring out-of-state corporations to consent to in-state suits
in exchange for the rights to exploit the local market and to
receive the full range of benefts enjoyed by in-state corpora-
tions. These statutes varied. In some States, out-of-state
corporate defendants were required to agree to answer suits
brought by in-state plaintiffs. See, e. g., N. Y. Code Proc.
§ 427 (1849); 1866 Wis. Laws ch. 1, § 86.1; Md. Ann. Code, Art.
26, § 211 (1868); N. C. Gen. Stat., ch. 17, § 82 (1873). In other
States, corporations were required to consent to suit if the
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plaintiff's cause of action arose within the State, even if
the plaintiff happened to reside elsewhere. See, e. g., Iowa
Code, ch. 101, § 1705 (1851); 1874 Tex. Gen. Laws p. 107; 1881
Mich. Pub. Acts p. 348. Still other States (and the federal
government) omitted both of these limitations. They re-
quired all out-of-state corporations that registered to do
business in the forum to agree to defend themselves there
against any manner of suit. See, e. g., Act of Feb. 22, 1867,
14 Stat. 404; 1889 Nev. Stats. p. 47; S. C. Rev. Stat., Tit. 7,
ch. 45, § 1466 (1894); Conn. Gen. Stat. § 3931 (1895). Yet an-
other group of States applied this all-purpose-jurisdiction
rule to a subset of corporate defendants, like railroads and in-
surance companies. See, e. g., 1827 Va. Acts ch. 74, p. 77; 1841
Pa. Laws p. 29; 1854 Ohio Laws p. 91; Ill. Comp. Stat., ch. 112,
§ 68 (1855); Ark. Stat., ch. 76, § 3561 (1873); Mo. Rev. Stat.,
ch. 119, Art. 4, § 6013 (1879). Mr. Mallory has collected an
array of these statutes, enacted between 1835 and 1915, in
Cite as: 600 U. S. 122 (2023) 131
Opinion Gorsuch, J.
his statutory appendix. See App. to Brief for Petitioner
1a–274a.4
III
A
Unsurprisingly, some corporations challenged statutes
like these on various grounds, due process included. And,
ultimately, one of these disputes reached this Court in Penn-
sylvania Fire.
That case arose this way. Pennsylvania Fire was an in-
surance company incorporated under the laws of Pennsylva-
nia. In 1909, the company executed a contract in Colorado
to insure a smelter located near the town of Cripple Creek
owned by the Gold Issue Mining & Milling Company, an Ari-
zona corporation. Gold Issue Min. & Milling Co. v. Penn-
4
Norfolk Southern and the dissent observe that some state courts ap-
plied these laws narrowly. Brief for Respondent 43–44; post, at 173–175,
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and n. 4 (Barrett, J., dissenting). But, as we will see in a moment, oth-
ers did not. Part III, infra. Even state courts that adopted narrowing
constructions of their laws did so by invoking statutory interpretation
principles and discretionary doctrines. Notably, neither Norfolk South-
ern nor the dissent has identifed a single case (or any other source) from
this period holding that all-purpose jurisdiction premised on a consent
statute violates the Due Process Clause. Indeed, some of the decisions
they cite presumed just the opposite. See, e. g., Camden Rolling Mill Co.
v. Swede Iron Co., 32 N. J. L. 15, 17–18 (1866) (a law like Pennsylvania's
“could be judicially adopted” consistent with due process if clearly ex-
pressed); Sawyer v. North Am. Life Ins. Co., 46 Vt. 697, 706–707 (1874)
(similar). Nothing in this body of case law, then, comes close to satisfying
Norfolk Southern's burden of establishing that consent statutes like Penn-
sylvania's “ ``offen[d] some principle of justice so rooted in the traditions
and conscience of our people as to be ranked' ” among those secured by
the Due Process Clause. Medina v. California, 505 U. S. 437, 445–448
(1992). In saying this much, we hardly suggest, as the dissent supposes,
that the practice of States or their courts is irrelevant. Post, at 173, n. 3.
Our point is simply that Norfolk Southern has not met its burden of show-
ing that original and historic understandings of due process foreclose con-
sent statutes.
132 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
sylvania Fire Ins. Co. of Phila., 267 Mo. 524, 537, 184 S. W.
999, 1001 (1916). Less than a year later, lightning struck
and a fre destroyed the insured facility. Ibid. When Gold
Issue Mining sought to collect on its policy, Pennsylvania
Fire refused to pay. So, Gold Issue Mining sued. But it
did not sue where the contract was formed (Colorado), or in
its home State (Arizona), or even in the insurer's home State
(Pennsylvania). Instead, Gold Issue Mining brought its
claim in a Missouri state court. Id., at 534, 184 S. W., at
1000. Pennsylvania Fire objected to this choice of forum.
It said the Due Process Clause spared it from having to an-
swer in Missouri's courts a suit with no connection to the
State. Id., at 541, 184 S. W., at 1002.
The Missouri Supreme Court disagreed. It frst observed
that Missouri law required any out-of-state insurance com-
pany “desiring to transact any business” in the State to fle
paperwork agreeing to (1) appoint a state offcial to serve as
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the company's agent for service of process, and (2) accept
service on that offcial as valid in any suit. Id., at 543, 184
S. W., at 1003 (internal quotation marks omitted). For more
than a decade, Pennsylvania Fire had complied with the law,
as it had “desir[ed] to transact business” in Missouri “pursu-
ant to the laws thereof.” Id., at 545, 184 S. W., at 1003.
And Gold Issue Mining had served process on the appro-
priate state offcial, just as the law required. See id., at 535,
184 S. W., at 1000.
As to the law's constitutionality, the Missouri Supreme
Court carefully reviewed this Court's precedents and found
they “clearly” supported “sustain[ing] the proceeding.” Id.,
at 569, 576, 184 S. W., at 1010, 1013; see id., at 552–576, 601,
184 S. W., at 1005–1013, 1020–1021. The Missouri Supreme
Court explained that its decision was also supported by “the
origin, growth, and history of transitory actions in England,
and their importation, adoption, and expansion” in America.
Id., at 578–586, 184 S. W., at 1013–1016. It stressed, too,
Cite as: 600 U. S. 122 (2023) 133
Opinion Gorsuch, J.
that the law had long permitted suits against individuals in
any jurisdiction where they could be found, no matter where
the underlying cause of action happened to arise. What
sense would it make to treat a fctitious corporate person
differently? See id., at 588–592, 600, 184 S. W., at 1016–
1018, 1020. For all these reasons, the court concluded,
Pennsylvania Fire “ha[d] due process of law, regardless of
the place, state or nation where the cause of action arose.”
Id., at 576, 184 S. W., at 1013.
Dissatisfed with this answer, Pennsylvania Fire turned
here. Writing for a unanimous Court, Justice Holmes had
little trouble dispatching the company's due process argu-
ment. Under this Court's precedents, there was “no doubt”
Pennsylvania Fire could be sued in Missouri by an out-
of-state plaintiff on an out-of-state contract because it had
agreed to accept service of process in Missouri on any suit
as a condition of doing business there. Pennsylvania Fire,
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243 U. S., at 95. Indeed, the Court thought the matter so
settled by existing law that the case “hardly” presented an
“open” question. Ibid. The Court acknowledged that the
outcome might have been different if the corporation had
never appointed an agent for service of process in Missouri,
given this Court's earlier decision in Old Wayne Mut. Life
Assn. of Indianapolis v. McDonough, 204 U. S. 8 (1907).
But the Court thought that Old Wayne had “left untouched”
the principle that due process allows a corporation to be sued
on any claim in a State where it has appointed an agent to
receive whatever suits may come. 243 U. S., at 95–96. The
Court found it unnecessary to say more because the com-
pany's objections had been resolved “at length in the judg-
ment of the court below.” Id., at 95.
That assessment was understandable. Not only had the
Missouri Supreme Court issued a thoughtful opinion. Not
only did a similar rule apply to transitory actions against
individuals. Other leading judges, including Learned Hand
134 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
and Benjamin Cardozo, had reached similar conclusions in
similar cases in the years leading up to Pennsylvania Fire.
See Smolik v. Philadelphia & Reading Coal & Iron Co., 222
F. 148, 150–151 (SDNY 1915) (Hand, J.); Bagdon v. Philadel-
phia & Reading Coal & Iron Co., 217 N. Y. 432, 436–437,
111 N. E. 1075, 1076–1077 (1916) (Cardozo, J.). In the years
following Pennsylvania Fire, too, this Court reaffrmed its
holding as often as the issue arose. See, e. g., Louisville &
Nashville R. Co. v. Chatters, 279 U. S. 320, 325–326 (1929);
Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165,
175 (1939); see also Robert Mitchell Furniture Co. v. Selden
Breck Constr. Co., 257 U. S. 213, 215–216 (1921); Wuchter v.
Pizzutti, 276 U. S. 13, 20 (1928).
B
Pennsylvania Fire controls this case. Much like the Mis-
souri law at issue there, the Pennsylvania law at issue here
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provides that an out-of-state corporation “may not do busi-
ness in this Commonwealth until it registers with” the De-
partment of State. 15 Pa. Cons. Stat. § 411(a). As part of
the registration process, a corporation must identify an “of-
fce” it will “continuously maintain” in the Commonwealth.
§ 411(f); see also § 412(a)(5). Upon completing these require-
ments, the corporation “shall enjoy the same rights and priv-
ileges as a domestic entity and shall be subject to the same
liabilities, restrictions, duties and penalties . . . imposed on
domestic entities.” § 402(d). Among other things, Pennsyl-
vania law is explicit that “qualifcation as a foreign corpora-
tion” shall permit state courts to “exercise general personal
jurisdiction” over a registered foreign corporation, just as
they can over domestic corporations. 42 Pa. Cons. Stat.
§ 5301(a)(2)(i).
Norfolk Southern has complied with this law for many
years. In 1998, the company registered to do business in
Pennsylvania. Acting through its Corporate Secretary as a
Cite as: 600 U. S. 122 (2023) 135
Opinion of the Court
“duly authorized offcer,” the company completed an “Ap-
plication for Certifcate of Authority” from the Common-
wealth “[i]n compliance with” state law. App. 1–2. As part
of that process, the company named a “Commercial Regis-
tered Offce Provider” in Philadelphia County, agreeing that
this was where it “shall be deemed . . . located.” Ibid. The
Secretary of the Commonwealth approved the application,
conferring on Norfolk Southern both the benefts and bur-
dens shared by domestic corporations—including amenabil-
ity to suit in state court on any claim. Id., at 1. Since 1998,
Norfolk Southern has regularly updated its information
on file with the Secretary. In 2009, for example, the
company advised that it had changed its Registered Offce
Provider and would now be deemed located in Dauphin
County. Id., at 6; see 15 Pa. Cons. Stat. § 4144(b) (1988).
All told, then, Norfolk Southern has agreed to be found in
Pennsylvania and answer any suit there for more than 20
Page Proof Pending Publication
years.
Pennsylvania Fire held that suits premised on these
grounds do not deny a defendant due process of law. Even
Norfolk Southern does not seriously dispute that much. It
concedes that it registered to do business in Pennsylvania,
that it established an offce there to receive service of proc-
ess, and that in doing so it understood it would be amenable
to suit on any claim. Tr. of Oral Arg. 62; post, at 150–151
(Alito, J., concurring in part and concurring in judgment);
post, at 148 (Jackson, J., concurring). Of course, Mr. Mal-
lory no longer lives in Pennsylvania and his cause of action
did not accrue there. But none of that makes any more dif-
ference than the fact that Gold Issue Mining was not from
Missouri (but from Arizona) and its claim did not arise there
(but in Colorado). See Pennsylvania Fire, 267 Mo., at 537,
184 S. W., at 1001. To decide this case, we need not specu-
late whether any other statutory scheme and set of facts
would suffce to establish consent to suit. It is enough to
136 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
acknowledge that the state law and facts before us fall
squarely within Pennsylvania Fire's rule. See post, at 150–
153 (opinion of Alito, J.).
In the proceedings below, the Pennsylvania Supreme
Court seemed to recognize that Pennsylvania Fire dictated
an answer in Mr. Mallory's favor. Still, it ruled for Norfolk
Southern anyway. It did so because, in its view, intervening
decisions from this Court had “implicitly overruled” Penn-
sylvania Fire. See 266 A. 3d, at 559, 567. But in following
that course, the Pennsylvania Supreme Court clearly erred.
As this Court has explained: “If a precedent of this Court
has direct application in a case,” as Pennsylvania Fire does
here, a lower court “should follow the case which directly
controls, leaving to this Court the prerogative of overruling
its own decisions.” Rodriguez de Quijas v. Shearson/Amer-
ican Express, Inc., 490 U. S. 477, 484 (1989). This is true
even if the lower court thinks the precedent is in tension
with “some other line of decisions.” Ibid.5
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IV
Now before us, Norfolk Southern candidly asks us to do
what the Pennsylvania Supreme Court could not—overrule
5
The dissent stresses that Pennsylvania's statute does not use the word
“consent” in describing the jurisdictional consequences of registration.
When the dissent fnally comes around to addressing Pennsylvania Fire
at the end of its opinion, it feetingly seeks to distinguish the decision
along the same lines—stressing that words like “agent” and “jurisdiction”
do not appear “in Norfolk Southern's registration paperwork.” Post, at
167, 179, and n. 8. But, as the dissent itself elsewhere acknowledges, “ ``[a]
variety of legal arrangements have been taken to represent express or
implied consent to' ” personal jurisdiction consistent with due process.
Post, at 167. And neither Pennsylvania Fire, nor our later decisions
applying it, nor our precedents approving other forms of consent to per-
sonal jurisdiction have ever imposed some sort of “magic words” require-
ment. See infra, at 145–146; Pennsylvania Fire, 243 U. S., at 95; Neirbo
Co., 308 U. S., at 175.
Cite as: 600 U. S. 122 (2023) 137
Opinion of Gorsuch, J.
Pennsylvania Fire. Brief for Respondent 36– 38. To
smooth the way, Norfolk Southern suggests that this Court's
decision in International Shoe Co. v. Washington, 326 U. S.
310 (1945), has already done much of the hard work for us.
That decision, the company insists, seriously undermined
Pennsylvania Fire's foundations. Brief for Respondent 34–
36. We disagree. The two precedents sit comfortably side
by side. See post, at 152–153 (opinion of Alito, J.).
A
Start with how Norfolk Southern sees things. On the
company's telling, echoed by the dissent, International Shoe
held that the Due Process Clause tolerates two (and only
two) types of personal jurisdiction over a corporate defend-
ant. First, “specifc jurisdiction” permits suits that “ ``arise
out of or relate to' ” a corporate defendant's activities in the
forum State. Ford Motor Co., 592 U. S., at ––– – –––. Sec-
Page Proof Pending Publication
ond, “general jurisdiction” allows all kinds of suits against
a corporation, but only in States where the corporation is
incorporated or has its “principal place of business.” Id.,at –––. After International Shoe, Norfolk Southern insists,
no other bases for personal jurisdiction over a corporate de-
fendant are permissible. Brief for Respondent 13–15; see
post, at 164–166 (Barrett, J., dissenting).
But if this account might seem a plausible summary of
some of our International Shoe jurisprudence, it oversimpli-
fes matters. Here is what really happened in Interna-
tional Shoe. The State of Washington sued a corporate de-
fendant in state court for claims based on its in-state
activities even though the defendant had not registered to
do business in Washington and had not agreed to be present
and accept service of process there. 326 U. S., at 312–313.
Despite this, the Court held that the suit against the com-
pany comported with due process. In doing so, the Court
reasoned that the Fourteenth Amendment “permit[s]” suits
138 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
against a corporate defendant that has not agreed to be
“presen[t] within the territorial jurisdiction of a court,” so
long as “the quality and nature of the [company's] activity”
in the State “make it reasonable and just” to maintain suit-
there. Id., at 316, 319–320. Put simply, even without
agreeing to be present, the out-of-state corporation was still
amenable to suit in Washington consistent with “ ``fair play
and substantial justice' ”—terms the Court borrowed from
Justice Holmes, the author of Pennsylvania Fire. Interna-
tional Shoe, 326 U. S., at 316 (citing McDonald v. Mabee, 243
U. S. 90, 91–92 (1917)).
In reality, then, all International Shoe did was stake out
an additional road to jurisdiction over out-of-state corpora-
tions. Pennsylvania Fire held that an out-of-state corpora-
tion that has consented to in-state suits in order to do busi-
ness in the forum is susceptible to suit there. International
Shoe held that an out-of-state corporation that has not con-
sented to in-state suits may also be susceptible to claims in
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the forum State based on “the quality and nature of [its]
activity” in the forum. 326 U. S., at 319. Consistent with
all this, our precedents applying International Shoe have
long spoken of the decision as asking whether a state court
may exercise jurisdiction over a corporate defendant “ ``that
has not consented to suit in the forum.' ” Goodyear Dunlop
Tires Operations, S. A. v. Brown, 564 U. S. 915, 927–928
(2011) (emphasis added); see also Daimler AG v. Bauman,
571 U. S. 117, 129 (2014). Our precedents have recog-
nized, too, that “express or implied consent” can continue to
ground personal jurisdiction—and consent may be mani-
fested in various ways by word or deed. See, e. g., Insur-
ance Corp. of Ireland v. Compagnie des Bauxites de Guinee,
456 U. S. 694, 703 (1982); BNSF R. Co. v. Tyrrell, 581 U. S. 402,
415 (2017). See also post, at 152–153 (opinion of Alito, J.).6
6
Because International Shoe allowed a suit against a corporation that
had not registered to do business in the forum State, if it disturbed any-
thing it was only this Court's decision in Old Wayne, not Pennsylvania
Cite as: 600 U. S. 122 (2023) 139
Opinion of Gorsuch, J.
That Norfolk Southern overreads International Shoe fnds
confrmation in that decision's emphasis on “ ``fair play and
substantial justice.' ” 326 U. S., at 316. Sometimes, Inter-
national Shoe said, the nature of a company's in-state activi-
ties will support jurisdiction over a nonconsenting corpora-
tion when those activities “give rise to the liabilities sued
on.” Id., at 317. Other times, it added, suits “on causes of
action arising from dealings entirely distinct from [the com-
pany's] activities” in the forum State may be appropriate.
Id., at 318. These passages may have pointed the way to
what (much) later cases would label “specifc jurisdiction”
over claims related to in-forum activities and “general juris-
diction” in places where a corporation is incorporated or
headquartered. See, e. g., Helicopteros Nacionales de Co-
lombia, S. A. v. Hall, 466 U. S. 408, 414–415, and nn. 8–9
(1984). But the fact remains that International Shoe itself
eschewed any “mechanical or quantitative” test and instead
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endorsed a fexible approach focused on “the fair and orderly
administration of the laws which it was the purpose of
the due process clause to insure.” 326 U. S., at 319. Un-
questionably, too, International Shoe saw this fexible stand-
ard as expanding—not contracting—state court jurisdiction.
See Daimler, 571 U. S., at 128, and n. 6. As we later put
the point: “The immediate effect of [International Shoe] was
to increase the ability of the state courts to obtain personal
jurisdiction over nonresident defendants.” Shaffer v. Heit-
ner, 433 U. S. 186, 204 (1977).
Given all this, it is no wonder that we have already turned
aside arguments very much like Norfolk Southern's. In
Burnham, the defendant contended that International Shoe
implicitly overruled the traditional tag rule holding that indi-
viduals physically served in a State are subject to suit there
for claims of any kind. 495 U. S., at 616 (plurality opinion).
Fire. See supra, at 133; Perkins v. Benguet Consol. Mining Co., 342 U. S.
437, 443–444 (1952).
140 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
This Court rejected that submission. Instead, as Justice
Scalia explained, International Shoe simply provided a
“novel” way to secure personal jurisdiction that did nothing
to displace other “traditional ones.” Id., at 619. What held
true there must hold true here. Indeed, seven years after
deciding International Shoe, the Court cited Pennsylvania
Fire approvingly. Perkins v. Benguet Consol. Mining Co.,
342 U. S. 437, 446, n. 6 (1952).7
B
Norfolk Southern offers several replies, but none per-
suades. The company begins by pointing to this Court's de-
cision in Shaffer. There, as the company stresses, the Court
indicated that “ ``prior decisions . . . inconsistent with' ” Inter-
national Shoe “ ``are overruled.' ” Brief for Respondent 35
(quoting Shaffer, 433 U. S., at 212, n. 39); post, at 177–178
(opinion of Barrett, J.). True as that statement may be,
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however, it only poses the question whether Pennsylvania
Fire is “inconsistent with” International Shoe. And, as we
have seen, it is not. Instead, the latter decision expanded
upon the traditional grounds of personal jurisdiction recog-
7
Norfolk Southern and the dissent observe that, today, few States con-
tinue to employ consent statutes like Pennsylvania's. Brief for Respond-
ent 22; post, at 172–173, 177, n. 6. Surely, too, some States may see strong
policy reasons for proceeding differently than Pennsylvania has. See,
e. g., State ex rel. Am. Central Life Ins. Co. v. Landwehr, 300 S. W. 294,
297 (1927) (abandoning construction of Missouri law at issue in Pennsylva-
nia Fire based on “the legislative policy in th[e] state”); cf. Cooper Tire,
312 Ga., at 437, 863 S. E. 2d, at 92 (Bethel, J., concurring) (suggesting
Georgia's consent scheme “creates a disincentive for foreign corporations
to” do business in-state and conficts with the State's claim to be
“ ``business-friendly' ”). But the meaning of the Due Process Clause is not
measured by the latest popularity poll, nor does it come with some desue-
tude rule against a traditional practice like consent-based jurisdiction long
held consistent with its demands. See Ownbey v. Morgan, 256 U. S. 94,
110–111 (1921).
Cite as: 600 U. S. 122 (2023) 141
Opinion of Gorsuch, J.
nized by the former. This Court has previously cautioned
litigants and lower courts against (mis)reading Shaffer as
suggesting that International Shoe discarded every tradi-
tional method for securing personal jurisdiction that came
before. See Burnham, 495 U. S., at 620–622 (plurality opin-
ion); cf. Daimler, 571 U. S., at 126, 132–133. We fnd our-
selves repeating the admonition today.8
Next, Norfolk Southern appeals to the spirit of our age.
After International Shoe, it says, the “primary concern” of
the personal jurisdiction analysis is “[t]reating defendants
fairly.” Brief for Respondent 19 (internal quotation marks
omitted). And on the company's telling, it would be “unfair”
to allow Mr. Mallory's suit to proceed in Pennsylvania be-
cause doing so would risk unleashing “ ``local prejudice' ”
against a company that is “not ``local' in the eyes of the com-
munity.” Id., at 19–21.
But if fairness is what Norfolk Southern seeks, pause for
a moment to measure this suit against that standard. When
Page Proof Pending Publication
Mr. Mallory brought his claim in 2017, Norfolk Southern had
registered to do business in Pennsylvania for many years.
It had established an offce for receiving service of process.
It had done so pursuant to a statute that gave the company
the right to do business in-state in return for agreeing to
answer any suit against it. And the company had taken full
advantage of its opportunity to do business in the Common-
wealth, boasting of its presence this way:
8
Taking up the Shaffer baton from the company, the dissent insists that
International Shoe “ ``cast . . . aside' ” consent statutes in favor of a mini-
mum contacts analysis. Post, at 175–176. But, as we have seen, nothing
in International Shoe purported to address, let alone condemn, consent
statutes. Even the dissent ultimately acknowledges, as it must, that “ ``a
variety of legal arrangements' ” can signal consent to jurisdiction after
International Shoe, and these arrangements can include state laws re-
quiring consent to suit in exchange “for access to [a State's] markets.”
Post, at 167, 168; see also Neirbo Co., 308 U. S., at 175 (calling this form of
consent “real consent” (emphasis added)).
142 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
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Cite as: 600 U. S. 122 (2023) 143
Opinion of Gorsuch, J.
Norfolk Southern Corp., State Fact Sheets–Pennsylvania
(2018), https://nscorp.com/content/dam/nscorp/get-to-know-
ns/about-ns/state-fact-sheets/pa-state-fact-sheet.pdf.
All told, when Mr. Mallory sued, Norfolk Southern em-
ployed nearly 5,000 people in Pennsylvania. It maintained
more than 2,400 miles of track across the Commonwealth.
Its 70-acre locomotive shop there was the largest in North
America. Contrary to what it says in its brief here, the
company even proclaimed itself a proud part of “the Pennsyl-
vania Community.” Ibid. By 2020, too, Norfolk Southern
managed more miles of track in Pennsylvania than in any
other State. Brief for Public Citizen as Amicus Curiae 21.
And it employed more people in Pennsylvania than it did in
Virginia, where its headquarters was located. Ibid. Nor
are we conjuring these statistics out of thin air. The com-
pany itself highlighted its “intrastate activities” in the pro-
ceedings below. 266 A. 3d, at 560, 563 (discussing the frm's
“extensive operations in Pennsylvania,” including “2,278
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miles of track,” “eleven rail yards,” and “three locomotive
repair shops”). Given all this, on what plausible account could
International Shoe's concerns with “fair play and substantial
justice” require a Pennsylvania court to turn aside Mr. Mal-
lory's suit? See post, at 153–154 (opinion of Alito, J.).9
9
The dissent does not dispute the company's extensive in-state contacts
but replies that counsel for Mr. Mallory abandoned any reliance on them
at oral argument. Post, at 179–180, and n. 9. In support of its claim,
however, the dissent shears from context two sentences counsel uttered
in response to a question about “why [Mr. Mallory] sue[d] in Philadelphia.”
Tr. of Oral Arg. 48. In reply, counsel explained that Mr. Mallory “used to
live . . . in Pennsylvania” and “his lawyers are from there.” Id., at 48–49.
Counsel then agreed that “[t]hose contacts” would not establish jurisdic-
tion and pointed this Court to Norfolk Southern's “consent” to suit in
Pennsylvania. Id., at 49 (emphasis added). All in all, it was a prosaic
response to a simple question about why Mr. Mallory fled suit where he
did. Nor, contrary to the dissent's suggestion, are we alone in discussing
the company's in-state contacts; the lower court, the company, and the
dissent all point to them too. See 266 A. 3d, at 547; Brief for Respondent
16–21; post, at 165–166.
144 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
Perhaps sensing its arguments from fairness meet a dead
end, Norfolk Southern ultimately heads in another direction
altogether. It suggests the Due Process Clause separately
prohibits one State from infringing on the sovereignty of an-
other State through exorbitant claims of personal jurisdic-
tion. Brief for Respondent 16–19; see post, at 168–171 (opin-
ion of Barrett, J.). And, in candor, the company is half
right. Some of our personal jurisdiction cases have dis-
cussed the federalism implications of one State's assertion of
jurisdiction over the corporate residents of another. See,
e. g., Bristol-Myers Squibb Co. v. Superior Court of Cal., San
Francisco Cty., 582 U. S. 255, 263 (2017). But that neglects
an important part of the story. To date, our personal juris-
diction cases have never found a Due Process Clause problem
sounding in federalism when an out-of-state defendant sub-
mits to suit in the forum State. After all, personal jurisdic-
tion is a personal defense that may be waived or forfeited.
See Insurance Corp. of Ireland, 456 U. S., at 704–705; see
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also post, at 156 (opinion of Alito, J.); post, at 147–148 (opin-
ion of Jackson, J.).
That leaves Norfolk Southern one fnal stand. It argues
that it has not really submitted to proceedings in Pennsylva-
nia. Brief for Respondent 11–13; see post, at 167–168, 170
(opinion of Barrett, J.). The company does not dispute
that it has fled paperwork with Pennsylvania seeking the
right to do business there. It does not dispute that it has
established an offce in the Commonwealth to receive service
of process on any claim. It does not dispute that it appreci-
ated the jurisdictional consequences attending these actions
and proceeded anyway, presumably because it thought the
benefts outweighed the costs. But, in the name of the Due
Process Clause, Norfolk Southern insists we should dismiss
all that as a raft of meaningless formalities.10
10
While the dissent joins Norfolk Southern in this argument, it wavers.
At points, the dissent seems to insist that laws like Pennsylvania's “mak[e]
no sense.” Post, at 167–168. But the closest the dissent comes to identi-
fying authority for the notion that laws like these are impermissible are
Cite as: 600 U. S. 122 (2023) 145
Opinion of Gorsuch, J.
Taken seriously, this argument would have us undo not
just Pennsylvania Fire but a legion of precedents that attach
jurisdictional consequences to what some might dismiss as
mere formalities. Consider some examples we have already
encountered. In a typical general jurisdiction case under
International Shoe, a company is subject to suit on any claim
in a forum State only because of its decision to fle a piece
of paper there (a certifcate of incorporation). The frm is
amenable to suit even if all of its operations are located else-
where and even if its certifcate only sits collecting dust on an
offce shelf for years thereafter. See, e. g., Goodyear, 564
U. S., at 924. Then there is the tag rule. The invisible state
line might seem a trivial thing. But when an individual takes
one step off a plane after fying from New Jersey to Califor-
nia, the jurisdictional consequences are immediate and seri-
ous. See Burnham, 495 U. S., at 619 (plurality opinion).
Consider, too, just a few other examples. A defendant
who appears “specially” to contest jurisdiction preserves his
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defense, but one who forgets can lose his. See York v.
Texas, 137 U. S. 15, 19–21 (1890). Failing to comply with
certain pretrial court orders, signing a contract with a forum
selection clause, accepting an in-state beneft with jurisdic-
tional strings attached—all these actions as well can carry
with them profound consequences for personal jurisdiction.
See Insurance Corp. of Ireland, 456 U. S., at 703–706 (collect-
ing cases); see also post, at 147–148 (opinion of Jackson, J.).
two cases that did not involve personal jurisdiction or purport to interpret
the Due Process Clause. Post, at 170 (citing Home Ins. Co. v. Morse, 20
Wall. 445 (1874); Barron v. Burnside, 121 U. S. 186 (1887)). The dissent's
observation that one of those cases in turn cited Lafayette Ins. Co. v.
French, 18 How. 404 (1856), hardly helps—that decision approved a
consent-to-suit regime for out-of-state corporations under the Full Faith
and Credit Clause. Id., at 405–407. At other points, however, and as
we have seen, the dissent rightly acknowledges that a “ ``variety of legal
arrangements [may] represent express or implied consent' ” to personal
jurisdiction consistent with due process, and these arrangements can in-
clude requiring at least some companies to consent to suit in exchange “for
access to [a State's] markets.” Post, at 167, 168.
146 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Gorsuch, J.
The truth is, under our precedents a variety of “actions of
the defendant” that may seem like technicalities nonetheless
can “amount to a legal submission to the jurisdiction of a
court.” Insurance Corp. of Ireland, 456 U. S., at 704–705;
see also Brief for Stephen E. Sachs as Amicus Curiae 10.
That was so before International Shoe, and it remains so
today. Should we overrule them all? Taking Norfolk
Southern's argument seriously would require just that.
But, tellingly, the company does not follow where its argu-
ment leads or even acknowledge its implications. Instead,
Norfolk Southern asks us to pluck out and overrule just one
longstanding precedent that it happens to dislike. We de-
cline the invitation. Post, at 152–153 (opinion of Alito, J.).
There is no fair play or substantial justice in that.11
* * *
Not every case poses a new question. This case poses a
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very old question indeed—one this Court resolved more than
a century ago in Pennsylvania Fire. Because that decision
remains the law, the judgment of the Supreme Court of
Pennsylvania is vacated, and the case is remanded.
It is so ordered.
11
While various separate writings accompany this opinion, it should be
apparent a majority of the Court today agrees that: Norfolk Southern
consented to suit in Pennsylvania. Supra, at 134–136; post, at 151 (opinion
of Alito, J.). Pennsylvania Fire therefore controls this case. Supra, at
135–136; post, at 151–152 (opinion of Alito, J.). Pennsylvania Fire's rule
for consent-based jurisdiction has not been overruled. Supra, at 136–138;
post, at 152–153 (opinion of Alito, J.). International Shoe governs where
a defendant has not consented to exercise of jurisdiction. Supra, at 138;
post, at 152–153 (opinion of Alito, J.). Exercising jurisdiction here is
hardly unfair. Supra, at 141–143; post, at 153–154 (opinion of Alito, J.).
The federalism concerns in our due process cases have applied only when
a defendant has not consented. Supra, at 144; post, at 156 (opinion of
Alito, J.). Nor will this Court now overrule Pennsylvania Fire. Supra,at 144–146; post, at 152 (opinion of Alito, J.).
Cite as: 600 U. S. 122 (2023) 147
Jackson, J., concurring
Justice Jackson, concurring.
I agree with the Court that this case is straightforward
under our precedents. I write separately to say that, for
me, what makes it so is not just our ruling in Pennsylvania
Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Mill-
ing Co., 243 U. S. 93 (1917). I also consider our ruling in
Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U. S. 694 (1982), to be particularly instructive.
In Insurance Corp. of Ireland, this Court confrmed a sim-
ple truth: The due process “requirement of personal jurisdic-
tion” is an individual, waivable right. Id., at 703. The re-
quirement exists, we said, to ensure that the forum State has
suffcient contacts with a defendant, such that “ ``the mainte-
nance of the suit [does] not offend “traditional notions of fair
play and substantial justice.” ' ” Ibid. (quoting Interna-
tional Shoe Co. v. Washington, 326 U. S. 310, 319 (1945)).
We noted further that the interstate federalism concerns in-
Page Proof Pending Publication
forming that right are “ultimately a function of the individ-
ual liberty interest” that this due process right preserves.
456 U. S., at 703, n. 10. Because the personal-jurisdiction
right belongs to the defendant, however, we explained that
a defendant can choose to “subject [itself] to powers from
which [it] may otherwise be protected.” Ibid. When that
happens, a State can exercise jurisdiction over the defendant
consistent with the Due Process Clause, even if our personal-
jurisdiction cases would normally preclude the State from
subjecting a defendant to its authority under the circum-
stances presented. Ibid.Waiver is thus a critical feature of the personal-
jurisdiction analysis. And there is more than one way to
waive personal-jurisdiction rights, as Insurance Corp. of Ire-
land also clarifed. A defendant can waive its rights by ex-
plicitly or implicitly consenting to litigate future disputes in
a particular State's courts. Id., at 703–704. A defendant
might also fail to follow specifc procedural rules, and end
up waiving the right to object to personal jurisdiction as a
148 MALLORY v. NORFOLK SOUTHERN R. CO.
Jackson, J., concurring
consequence. Id., at 705–706. Or a defendant can voluntar-
ily invoke certain benefts from a State that are conditioned
on submitting to the State's jurisdiction. Id., at 704 (citing
Adam v. Saenger, 303 U. S. 59, 67–68 (1938)).
Regardless of whether a defendant relinquishes its
personal-jurisdiction rights expressly or constructively, the
basic teaching of Insurance Corp. of Ireland is the same:
When a defendant chooses to engage in behavior that
“amount[s] to a legal submission to the jurisdiction of the
court,” the Due Process Clause poses no barrier to the court's
exercise of personal jurisdiction. 456 U. S., at 704–705.
In my view, there is no question that Norfolk Southern
waived its personal-jurisdiction rights here. As the Court
ably explains, Norfolk Southern agreed to register as a for-
eign corporation in Pennsylvania in exchange for the ability
to conduct business within the Commonwealth and receive
associated benefts. Ante, at 134–135; see also post, at 151
Page Proof Pending Publication
(Alito, J., concurring in part and concurring in judgment).
Moreover, when Norfolk Southern made that decision, the
jurisdictional consequences of registration were clear. See
42 Pa. Cons. Stat. § 5301(a)(2)(i) (1981) (expressly linking
“qualifcation as a foreign corporation under the laws of th[e]
Commonwealth” to the “exercise [of] general personal juris-
diction”); 266 A. 3d 542, 569 (Pa. 2021) (acknowledging that
“foreign corporations are given reasonable notice” of the ju-
risdictional implications of registration).
Nor was Norfolk Southern compelled to register and sub-
mit itself to the general jurisdiction of Pennsylvania courts
simply because its trains passed through the Commonwealth.
See, e. g., 15 Pa. Cons. Stat. § 403(a)(11) (2014); 1972 Pa. Laws
pp. 1154–1155. Registration is required when corporations
seek to conduct local business in a “regular, systematic, or
extensive” way. 266 A. 3d, at 562–563 (internal quotation
marks omitted). Norfolk Southern apparently deemed reg-
istration worthwhile and opted in.
Cite as: 600 U. S. 122 (2023) 149
Jackson, J., concurring
Under Insurance Corp. of Ireland, the due process ques-
tion that this case presents is easily answered. Having
made the choice to register and do business in Pennsylvania
despite the jurisdictional consequences (and having thereby
voluntarily relinquished the due process rights our general-
jurisdiction precedents afford), Norfolk Southern cannot be
heard to complain that its due process rights are violated by
having to defend itself in Pennsylvania's courts. Whether
Pennsylvania could have asserted general jurisdiction over
Norfolk Southern absent any waiver, see post, at 165–166
(Barrett, J., dissenting), is beside the point.
In other areas of the law, we permit States to ask defend-
ants to waive individual rights and safeguards. See, e. g.,
Brady v. United States, 397 U. S. 742, 748 (1970) (allowing
plea bargains to waive a defendant's trial rights and the right
against self-incrimination); Barker v. Wingo, 407 U. S. 514,
529, 536 (1972) (waiver of speedy trial rights). Moreover,
Page Proof Pending Publication
when defendants do so, we respect that waiver decision and
hold them to that choice, even though the government could
not have otherwise bypassed the rules and procedures those
rights protect. Insisting that our general-jurisdiction prec-
edents preclude Pennsylvania from subjecting corporations
to suit within its borders—despite their waiver of the protec-
tions those precedents entail—puts the personal-jurisdiction
requirement on a pedestal. But there is nothing “unique
about the requirement of personal jurisdiction [that] pre-
vents it from being . . . waived like other [individual] rights.”
Insurance Corp. of Ireland, 456 U. S., at 706.
In short, Insurance Corp. of Ireland makes clear that the
personal-jurisdiction requirement is an individual, waivable
right, and I agree with the Court that Norfolk Southern
waived that right by choosing to register as a foreign corpo-
ration under the circumstances presented in this case.
Therefore, I perceive no due process problem with the regis-
tration statute at issue here.
150 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Alito, J.
Justice Alito, concurring in part and concurring in the
judgment.
The sole question before us is whether the Due Process
Clause of the Fourteenth Amendment is violated when a
large out-of-state corporation with substantial operations in
a State complies with a registration requirement that condi-
tions the right to do business in that State on the registrant's
submission to personal jurisdiction in any suits that are
brought there. I agree with the Court that the answer to
this question is no. Assuming that the Constitution allows
a State to impose such a registration requirement, I see no
reason to conclude that such suits violate the corporation's
right to “ ``fair play and substantial justice.' ” International
Shoe Co. v. Washington, 326 U. S. 310, 316 (1945).
I am not convinced, however, that the Constitution permits
a State to impose such a submission-to-jurisdiction require-
ment. A State's assertion of jurisdiction over lawsuits with
Page Proof Pending Publication
no real connection to the State may violate fundamental
principles that are protected by one or more constitutional
provisions or by the very structure of the federal system
that the Constitution created. At this point in the develop-
ment of our constitutional case law, the most appropriate
home for these principles is the so-called dormant Commerce
Clause. Norfolk Southern appears to have asserted a Com-
merce Clause claim below, but the Pennsylvania Supreme
Court did not address it. See 266 A. 3d 542, 559–560, nn. 9,
11 (2021). Presumably, Norfolk Southern can renew the
challenge on remand. I therefore agree that we should va-
cate the Pennsylvania Supreme Court's judgment and re-
mand the case for further proceedings.
I
When Virginia resident Robert Mallory initiated this suit,
Norfolk Southern Railway Company, a railroad that was at
that time incorporated and headquartered in Virginia, had
long operated rail lines and conducted related business in
Cite as: 600 U. S. 122 (2023) 151
Opinion of Alito, J.
Pennsylvania. Consistent with Pennsylvania law, the com-
pany had registered as a “foreign” corporation, most recently
in 1998. 15 Pa. Cons. Stat. § 411(a) (2014); App. 1–2. Then,
as now, Pennsylvania law expressly provided that “qualifca-
tion as a foreign corporation” was a “suffcient basis” for
Pennsylvania courts “to exercise general personal juris-
diction” over an out-of-state company. 42 Pa. Cons. Stat.
§ 5301(a)(2)(i) (2019). Norfolk Southern is a sophisticated
entity, and we may “presum[e]” that it “acted with knowl-
edge” of state law when it registered. Commercial Mut.
Accident Co. v. Davis, 213 U. S. 245, 254 (1909). As a result,
we may also presume that by registering, it consented to all
valid conditions imposed by state law.
I do not understand Norfolk Southern to challenge this
basic premise. Tr. of Oral Arg. 62 (acknowledging that “the
railroad understood by fling [registration paperwork] that
it was subject to [Pennsylvania's general jurisdiction] law”).
Page Proof Pending Publication
Instead, Norfolk Southern argues that giving force to the
company's consent would violate the Fourteenth Amend-
ment's Due Process Clause. See Power Mfg. Co. v. Saun-
ders, 274 U. S. 490, 496–497 (1927).
That argument is foreclosed by our precedent. We ad-
dressed this question more than a century ago in Pennsylva-
nia Fire Ins. Co. of Philadelphia v. Gold Issue Mining &
Milling Co., 243 U. S. 93 (1917). There, an Arizona mining
company sued a Pennsylvania insurance company in a Mis-
souri court, alleging claims arising from events in Colorado.
Id., at 94. The Pennsylvania insurance company had “ob-
tained a license to do business in Missouri,” and so had com-
plied with a Missouri statute requiring the company to exe-
cute a power of attorney consenting to service of process on
the state insurance superintendent in exchange for licensure.
Ibid. The Missouri Supreme Court had previously con-
strued such powers of attorney as consent to jurisdiction in
Missouri for all claims, including those arising from transac-
tions outside the State. Gold Issue Mining & Milling Co.
152 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Alito, J.
v. Pennsylvania Fire Ins. Co. of Philadelphia, 267 Mo. 524,
549–550, 184 S. W. 999, 1003–1005 (1916) (citing State ex rel.
Pacifc Mut. Life Ins. Co. v. Grimm, 239 Mo. 135, 159–171,
143 S. W. 483, 490–494 (1911)). Because the insurance com-
pany had executed the power of attorney to obtain its li-
cense, the court held that Missouri had jurisdiction over the
company in that suit. 267 Mo., at 610, 184 S. W., at 1024.
We affrmed in a brief opinion, holding that the construction
of Missouri's statute and its application to the Pennsylvania
insurance company under the circumstances of the case did
not violate due process. Pennsylvania Fire, 243 U. S., at 95.
The parallels between Pennsylvania Fire and the case be-
fore us are undeniable. In both, a large company incor-
porated in one State was actively engaged in business in
another State. In connection with that business, both
companies took steps that, under the express terms or previ-
ous authoritative construction of state law, were understood
Page Proof Pending Publication
as consent to the State's jurisdiction in suits on all claims, no
matter where the events underlying the suit took place. In
both cases, an out-of-state plaintiff sued the out-of-state com-
pany, alleging claims unrelated to the company's forum-state
conduct. And in both, the out-of-state company objected,
arguing that holding it to the terms of its consent would
violate the Fourteenth Amendment's Due Process Clause.
In Pennsylvania Fire, we held that there was no due process
violation in these circumstances. Given the near-complete
overlap of material facts, that holding, unless it has been
overruled, is binding here.
Norfolk Southern has not persuaded me that Pennsylva-
nia Fire has been overruled. While we have infrequently
invoked that decision's due process holding, we have never
expressly overruled it. Nor can I conclude that it has been
impliedly overruled. See post, at 177–178 (Barrett, J., dis-
senting). Norfolk Southern cites the International Shoe
line of cases, but those cases involve constitutional limits on
jurisdiction over non-consenting corporations. See Inter-
Cite as: 600 U. S. 122 (2023) 153
Opinion of Alito, J.
national Shoe, 326 U. S., at 317; Goodyear Dunlop Tires Op-
erations, S. A. v. Brown, 564 U. S. 915, 927–928 (2011);
Daimler AG v. Bauman, 571 U. S. 117, 129 (2014); BNSF
R. Co. v. Tyrrell, 581 U. S. 402, 415 (2017) (declining to con-
sider defendant's alleged consent because court below did not
reach it). Consent is a separate basis for personal jurisdic-
tion. Insurance Corp. of Ireland v. Compagnie des Baux-
ites de Guinee, 456 U. S. 694, 703 (1982); Burger King Corp.
v. Rudzewicz, 471 U. S. 462, 472, n. 14 (1985); J. McIntyre
Machinery, Ltd. v. Nicastro, 564 U. S. 873, 880–881 (2011)
(plurality opinion). Pennsylvania Fire's holding, insofar as
it is predicated on the out-of-state company's consent, is not
“inconsistent” with International Shoe or its progeny.
Shaffer v. Heitner, 433 U. S. 186, 212, n. 39 (1977).
Nor would I overrule Pennsylvania Fire in this case, as
Norfolk Southern requests. At the least, Pennsylvania
Fire's holding does not strike me as “egregiously wrong” in
Page Proof Pending Publication
its application here. Ramos v. Louisiana, 590 U. S. –––, –––
(2020) (Kavanaugh, J., concurring in part). Requiring Nor-
folk Southern to defend against Mallory's suit in Pennsylva-
nia, as opposed to in Virginia, is not so deeply unfair that
it violates the railroad's constitutional right to due process.
International Shoe, 326 U. S., at 316. The company has ex-
tensive operations in Pennsylvania, 266 A. 3d, at 562–563;
see also ante, at 141–143; has availed itself of the Pennsylva-
nia courts on countless occasions, Brief for Academy of Rail
Labor Attorneys as Amicus Curiae 4–5 (collecting cases);
and had clear notice that Pennsylvania considered its regis-
tration as consent to general jurisdiction, 15 Pa. Cons. Stat.
§ 411(a); 42 Pa. Cons. Stat. § 5301(a)(2)(i). Norfolk South-
ern's “conduct and connection with [Pennsylvania] are such
that [it] should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp. v. Woodson, 444
U. S. 286, 297 (1980).
If having to defend this suit in Pennsylvania seems unfair
to Norfolk Southern, it is only because it is hard to see Mal-
154 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Alito, J.
lory's decision to sue in Philadelphia as anything other than
the selection of a venue that is reputed to be especially favor-
able to tort plaintiffs.1 But we have never held that the Due
Process Clause protects against forum shopping. Perhaps
for that understandable reason, no party has suggested that
we go so far.
For these reasons, I agree that Pennsylvania Fire con-
trols our decision here, but I stress that it does so due to the
clear overlap with the facts of this case.
II
A
While that is the end of the case before us, it is not the
end of the story for registration-based jurisdiction. We
have long recognized that the Constitution restricts a State's
power to reach out and regulate conduct that has little if
any connection with the State's legitimate interests. This
Page Proof Pending Publication
principle, an “obviou[s]” and “necessary result” of our consti-
tutional order, is not confned to any one clause or section,
but is expressed in the very nature of the federal system
that the Constitution created and in numerous provisions
that bear on States' interactions with one another. New
York Life Ins. Co. v. Head, 234 U. S. 149, 161 (1914).2
The dissent suggests that we apply this principle through
the Due Process Clause of the Fourteenth Amendment, post,
1
See, e. g., U. S. Chamber of Commerce Institute for Legal Reform, Nu-
clear Verdicts: Trends, Causes, and Solutions 20 (2022); M. Behrens & C.
Silverman, Litigation Tourism in Pennsylvania: Is Venue Reform Needed?
22 Widener L. J. 29, 30–31 (2012).
2
See, e. g., Florida v. Georgia, 17 How. 478, 494 (1855); Bonaparte v. Tax
Court, 104 U. S. 592, 594 (1882); Huntington v. Attrill, 146 U. S. 657, 669
(1892); Alaska Packers Assn. v. Industrial Accident Comm'n of Cal., 294
U. S. 532, 540 (1935); Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 521–
523 (1935); BMW of North America, Inc. v. Gore, 517 U. S. 559, 571–572,
and n. 16 (1996); State Farm Mut. Automobile Ins. Co. v. Campbell, 538
U. S. 408, 422 (2003).
Cite as: 600 U. S. 122 (2023) 155
Opinion of Alito, J.
at 169–171, and there is support for this argument in our
case law, if not in the ordinary meaning of the provision's
wording. By its terms, the Due Process Clause is about pro-
cedure, but over the years, it has become a refuge of sorts for
constitutional principles that are not “procedural” but would
otherwise be homeless as the result of having been exiled
from the provisions in which they may have originally been
intended to reside. This may be true, for example, with
respect to the protection of substantive rights that might
otherwise be guaranteed by the Fourteenth Amendment's
Privileges and Immunities Clause. See McDonald v. Chi-
cago, 561 U. S. 742, 754–759 (2010) (plurality opinion); id., at
808–812 (Thomas, J., concurring in part and concurring in
judgment). And in a somewhat similar way, our due process
decisions regarding personal jurisdiction have often invoked
respect for federalism as a factor in their analyses.
In our frst decision holding that the Fourteenth Amend-
Page Proof Pending Publication
ment's Due Process Clause protects a civil defendant from
suit in certain fora, the Court proclaimed that “no State can
exercise direct jurisdiction and authority over persons or
property without its territory.” Pennoyer v. Neff, 95 U. S.
714, 722 (1878). “The several States,” the Court explained,
“are of equal dignity and authority, and the independence of
one implies the exclusion of power from all others.” Ibid.The Court warned that, in certain circumstances, a State's
exercise of jurisdiction over non-residents would be “an en-
croachment upon the independence of [another] State” and a
“usurpation” of that State's authority. Id., at 723. And the
Court noted that this was not a newly-developed doctrine,
but refected “well-established principles of public law” that
“ha[d] been frequently expressed . . . in opinions of eminent
judges, and . . . carried into adjudications in numerous cases.”
Id., at 722, 724; see, e. g., D'Arcy v. Ketchum, 11 How. 165,
176 (1851); Picquet v. Swan, 19 F. Cas. 609, 612 (No. 11,134)
(CC Mass. 1828) (Story, J.).
156 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Alito, J.
Our post-International Shoe decisions have continued to
recognize that constitutional restrictions on state court juris-
diction “are more than a guarantee of immunity from incon-
venient or distant litigation,” but refect “territorial limita-
tions” on state power. Hanson v. Denckla, 357 U. S. 235,
251 (1958); see also World-Wide Volkswagen, 444 U. S., at
292 (in addition to “protect[ing] the defendant against the
burdens of litigating in a distant or inconvenient forum,” due
process “acts to ensure that the States, through their courts,
do not reach out beyond the limits imposed on them by their
status as coequal sovereigns in a federal system”); id., at 293(“The sovereignty of each State . . . implie[s] a limitation on
the sovereignty of all of its sister States—a limitation ex-
press or implicit in both the original scheme of the Consti-
tution and the Fourteenth Amendment”); J. McIntyre Ma-
chinery, 564 U. S., at 884 (plurality opinion) (if a “State
were to assert jurisdiction in an inappropriate case, it
Page Proof Pending Publication
would upset the federal balance, which posits that each State
has a sovereignty that is not subject to unlawful intrusion
by other States”). And we have recognized that in some
circumstances, “federalism interest[s] may be decisive” in
the due process analysis. Bristol-Myers Squibb Co. v. Supe-
rior Court of Cal., San Francisco Cty., 582 U. S. 255, 263
(2017).
Despite these many references to federalism in due proc-
ess decisions, there is a signifcant obstacle to addressing
those concerns through the Fourteenth Amendment here: we
have never held that a State's assertion of jurisdiction uncon-
stitutionally intruded on the prerogatives of another State
when the defendant had consented to jurisdiction in the
forum State. Indeed, it is hard to see how such a decision
could be justifed. The Due Process Clause confers a right
on “person[s],” Amdt. 14, § 1, not States. If a person volun-
tarily waives that right, that choice should be honored. See
Insurance Corp. of Ireland, 456 U. S., at 703; ante, at 148
(Jackson, J., concurring).
Cite as: 600 U. S. 122 (2023) 157
Opinion of Alito, J.
B
1
The federalism concerns that this case presents fall more
naturally within the scope of the Commerce Clause.3 “By
its terms, the Commerce Clause grants Congress the power
``[t]o regulate Commerce . . . among the several States.' ”
Raymond Motor Transp., Inc. v. Rice, 434 U. S. 429, 440
(1978) (quoting Art. I, § 8, cl. 3). But this Court has long
held that the Clause includes a negative component, the so-
called dormant Commerce Clause, that “prohibits state laws
that unduly restrict interstate commerce.” Tennessee Wine
and Spir i ts Retailers Assn. v. Thomas, 588 U. S. –––,
––– – ––– (2019); see, e. g., Cooley v. Board of Wardens of
Port of Philadelphia ex rel. Soc. for Relief of Distressed
Pilots, 12 How. 299, 318–319 (1852); Willson v. Black Bird
Creek Marsh Co., 2 Pet. 245, 252 (1829).
Page Proof Pending Publication
While the notion that the Commerce Clause restrains
States has been the subject of “thoughtful critiques,” the
concept is “deeply rooted in our case law,” Tennessee Wine,
588 U. S., at –––, and vindicates a fundamental aim of the
Constitution: fostering the creation of a national economy
and avoiding the every-State-for-itself practices that had
weakened the country under the Articles of Confederation.
See Hughes v. Oklahoma, 441 U. S. 322, 325–326 (1979);
Healy v. Beer Institute, 491 U. S. 324, 335–336 (1989). The
Framers “might have thought [that other provisions] would
fll that role,” but “at this point in the Court's history, no
3
Analyzing these concerns under the Commerce Clause has the addi-
tional advantage of allowing Congress to modify the degree to which
States should be able to entertain suits involving out-of-state parties and
conduct. If Congress disagrees with our judgment on this question, it
“has the authority to change the . . . rule” under its own Commerce power,
subject, of course, to any other relevant constitutional limit. South Da-
kota v. Wayfair, Inc., 585 U. S. –––, ––– – ––– (2018); see also Southern
Pacifc Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 769–770 (1945).
158 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Alito, J.
provision other than the Commerce Clause could easily do
the job.” Tennessee Wine, 588 U. S., at –––.4
In its negative aspects, the Commerce Clause serves to
“mediate [the States'] competing claims of sovereign author-
ity” to enact regulations that affect commerce among the
States. National Pork Producers Council v. Ross, 598 U. S.
356, 376 (2023). The doctrine recognizes that “one State's
power to impose burdens on . . . interstate market[s] . . . is
not only subordinate to the federal power over interstate
commerce, but is also constrained by the need to respect the
interests of other States.” BMW of North America, Inc. v.
Gore, 517 U. S. 559, 571 (1996) (citing Gibbons v. Ogden, 9
Wheat. 1, 194–196 (1824)). It is especially appropriate to
look to the dormant Commerce Clause in considering the
constitutionality of the authority asserted by Pennsylvania's
registration scheme. Because the right of an out-of-state
corporation to do business in another State is based on the
Page
4
In the past, Proof Pending
the Court recognized Publication
that the Import-Export Clause, Art.
I, § 10, cl. 2, and the Privileges and Immunities Clause, Art. IV, § 2, might
restrict state regulations that interfere with the national economy. See,
e. g., Brown v. Maryland, 12 Wheat. 419, 445–449 (1827) (reading Import-
Export Clause to prohibit state laws imposing duties on “importations
from a sister State”); Almy v. California, 24 How. 169, 175 (1861) (applying
Import-Export Clause to invalidate state law taxing gold and silver ship-
ments between States); Toomer v. Witsell, 334 U. S. 385, 396, and n. 26
(1948) (observing that the Privileges and Immunities Clause guarantees
out-of-state citizens the right to do business in a State on equal terms
with state citizens (citing Ward v. Maryland, 12 Wall. 418 (1871))). But
the Court has since narrowed the scope of these provisions. See Wood-
ruff v. Parham, 8 Wall. 123, 136–137 (1869) (holding that the Import-
Export Clause applies only to international trade); Western & Southern
Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U. S. 648, 656 (1981)
(observing that “the Privileges and Immunities Clause is inapplicable to
corporations” (citing Hemphill v. Orloff, 277 U. S. 537, 548–550 (1928))).
Whether or not these restrictive interpretations are correct as an original
matter, they are entrenched. Unless we overrule them, we must look
elsewhere if “a national economic union unfettered by state-imposed limi-
tations on commerce” is to be preserved. Healy, 491 U. S., at 336.
Cite as: 600 U. S. 122 (2023) 159
Opinion of Alito, J.
dormant Commerce Clause, it stands to reason that this doc-
trine may also limit a State's authority to condition that
right. See Granholm v. Heald, 544 U. S. 460, 472 (2005);
H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 539
(1949).
2
This Court and other courts have long examined asser-
tions of jurisdiction over out-of-state companies in light of
interstate commerce concerns.5 Consider Davis v. Farmers
Co-operative Equity Co., 262 U. S. 312 (1923), a case very
much like the one now before us. In Davis, a Kansas com-
pany sued a Kansas railroad in Minnesota on a claim that
was “in no way connected with Minnesota.” Id., at 314.
Jurisdiction over the railroad was based on its compliance
with a state statute regulating the in-state activities of out-
of-state corporations: the railroad maintained a soliciting
agent in Minnesota, and the Minnesota Supreme Court had
Page Proof Pending Publication
interpreted state law as compelling out-of-state carriers, as
a “condition of maintaining a soliciting agent,” to “submit to
suit” in Minnesota on any “cause of action, wherever it may
have arisen.” Id., at 315.
The Minnesota Supreme Court upheld jurisdiction against
the railroad, but we reversed, holding that Minnesota's condi-
tion “impos[ed] upon interstate commerce a serious and un-
reasonable burden, which renders the statute obnoxious to
the [C]ommerce [C]lause.” Ibid. “By requiring from inter-
state carriers general submission to suit,” Minnesota's stat-
5
See, e. g., Atchison, T. & S. F. R. Co. v. Wells, 265 U. S. 101, 103 (1924);
Michigan Central R. Co. v. Mix, 278 U. S. 492, 494–495 (1929); Denver &
Rio Grande Western R. Co. v. Terte, 284 U. S. 284, 287 (1932); Baltimore &
Ohio R. Co. v. Kepner, 314 U. S. 44, 50–51 (1941); Moss v. Atlantic Coast
Line R. Co., 157 F. 2d 1005, 1007 (CA2 1946); Kern v. Cleveland, C., C. &
St. L. R. Co., 204 Ind. 595, 601–604, 185 N. E. 446, 448–449 (1933); Hayman
v. Southern Pacifc Co., 278 S. W. 2d 749, 753 (Mo. 1955); White v. Southern
Pacifc Co., 386 S. W. 2d 6, 7–9 (Mo. 1965).
160 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Alito, J.
ute “unreasonably obstruct[ed], and unduly burden[ed], in-
terstate commerce.” Id., at 317.6
Although we have since refned our Commerce Clause
framework, the structural constitutional principles underly-
ing these decisions are unchanged, and the Clause remains
a vital constraint on States' power over out-of-state
corporations.
C
In my view, there is a good prospect that Pennsylvania's
assertion of jurisdiction here—over an out-of-state company
in a suit brought by an out-of-state plaintiff on claims wholly
unrelated to Pennsylvania—violates the Commerce Clause.
Under our modern framework, a state law may offend the
Commerce Clause's negative restrictions in two circum-
stances: when the law discriminates against interstate com-
merce or when it imposes “undue burdens” on interstate
commerce. South Dakota v. Wayfair, Inc., 585 U. S. –––, –––
Page Proof Pending Publication
(2018). Discriminatory state laws are subject to “ ``a virtu-
ally per se rule of invalidity.' ” Ibid. (quoting Granholm, 544
U. S., at 476). “[O]nce a state law is shown to discriminate
against interstate commerce ``either on its face or in practical
effect,' ” the law's proponent must “demonstrate both that
the statute ``serves a legitimate local purpose,' and that this
purpose could not be served as well by available nondiscrimi-
natory means.” Maine v. Taylor, 477 U. S. 131, 138 (1986).
Justifcation of a discriminatory law faces a “high” bar to
overcome the presumption of invalidity. New Energy Co. of
Ind. v. Limbach, 486 U. S. 269, 278 (1988). Laws that
“ ``even-handedly' ” regulate to advance “ ``a legitimate local
public interest' ” are subject to a looser standard. Wayfair,
585 U. S., at –––. These laws will be upheld “ ``unless the
burden imposed on [interstate] commerce is clearly excessive
6
Because we resolved the case under the Commerce Clause, we declined
to consider the railroad's Fourteenth Amendment challenges. Davis v.
Farmers Co-operative Equity Co., 262 U. S. 312, 318 (1923).
Cite as: 600 U. S. 122 (2023) 161
Opinion of Alito, J.
in relation to the putative local benefts.' ” Ibid. In these
circumstances, “ ``the question becomes one of degree,' ” and
“ ``the extent of the burden that will be tolerated will . . .
depend on the nature of the local interest involved.' ” Ray-
mond Motor Transp., 434 U. S., at 441. See also Pike v.
Bruce Church, Inc., 397 U. S. 137, 142 (1970).
There is reason to believe that Pennsylvania's registration-
based jurisdiction law discriminates against out-of-state
companies.7 But at the very least, the law imposes a “sig-
nifcant burden” on interstate commerce by “[r]equiring a
foreign corporation . . . to defend itself with reference to
all transactions,” including those with no forum connection.
Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486
U. S. 888, 893 (1988); see, e. g., Davis, 262 U. S., at 315–317
(burden in these circumstances is “serious and unreason-
able,” “heavy,” and “undu[e]”); Michigan Central R. Co. v.
Mix, 278 U. S. 492, 495 (1929) (burden is “heavy”); Denver &
Rio Grande Western R. Co. v. Terte, 284 U. S. 284, 287 (1932)
Page Proof Pending Publication
(burden is “serious”); Atchison, T. & S. F. R. Co. v. Wells,
265 U. S. 101, 103 (1924) ( jurisdiction “interfered unreason-
ably with interstate commerce”).
The foreseeable consequences of the law make clear why
this is so. Aside from the operational burdens it places on
out-of-state companies, Pennsylvania's scheme injects intol-
erable unpredictability into doing business across state bor-
ders. Large companies may be able to manage the patch-
7
See, e. g., J. Preis, The Dormant Commerce Clause as a Limit on
Personal Jurisdiction, 102 Iowa L. Rev. 138–140 (2016). A state law dis-
criminates against interstate commerce if its “ ``practical effect' ” is to dis-
advantage out-of-state companies to the beneft of in-state competitors.
Maine v. Taylor, 477 U. S. 131, 138 (1986); see United Haulers Assn., Inc.
v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. 330,
338 (2007). Pennsylvania's law seems to discriminate against out-of-state
companies by forcing them to increase their exposure to suits on all claims
in order to access Pennsylvania's market while Pennsylvania companies
generally face no reciprocal burden for expanding operations into an-
other State.
162 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of Alito, J.
work of liability regimes, damages caps, and local rules
in each State, but the impact on small companies, which
constitute the majority of all U. S. corporations, could be dev-
astating.8 Large companies may resort to creative corpo-
rate structuring to limit their amenability to suit. Small
companies may prudently choose not to enter an out-
of-state market due to the increased risk of remote litiga-
tion. Some companies may forgo registration altogether,
preferring to risk the consequences rather than expand their
exposure to general jurisdiction. “No one benefits from
this ``efficient breach' of corporate-registration laws”:
corporations must manage their added risk, and plaintiffs
face challenges in serving unregistered corporations. Brief
for Tanya Monestier as Amicus Curiae 16. States, mean-
while, “would externalize the costs of [their] plaintiff-
friendly regimes.” Brief for Stephen E. Sachs as Amicus
Curiae 26.
Given these serious burdens, to survive Commerce Clause
Page Proof Pending Publication
scrutiny under this Court's framework, the law must ad-
vance a “ ``legitimate local public interest' ” and the burdens
must not be “ ``clearly excessive in relation to the putative
local benefts.' ” Wayfair, 585 U. S., at –––. But I am hard-
pressed to identify any legitimate local interest that is ad-
vanced by requiring an out-of-state company to defend a suit
brought by an out-of-state plaintiff on claims wholly uncon-
nected to the forum State. A State certainly has a legiti-
mate interest in regulating activities conducted within its
borders, which may include providing a forum to redress
harms that occurred within the State. State Farm Mut.
Automobile Ins. Co. v. Campbell, 538 U. S. 408, 422 (2003);
BMW of North America, 517 U. S., at 568–569; Hess v. Paw-
loski, 274 U. S. 352, 356 (1927). A State also may have an
8
Congressional Research Service, M. Keightley & J. Hughes, Pass-
Throughs, Corporations, and Small Businesses: A Look at Firm Size 4–5
(2018) (in 2015, 62% of S corporations and 55% of C corporations had fewer
than fve employees).
Cite as: 600 U. S. 122 (2023) 163
Barrett, J., dissenting
interest “in providing its residents with a convenient forum
for redressing injuries inflicted by out-of-state actors.”
Burger King, 471 U. S., at 473. But a State generally does
not have a legitimate local interest in vindicating the rights
of non-residents harmed by out-of-state actors through con-
duct outside the State. See, e. g., Edgar v. MITE Corp., 457
U. S. 624, 644 (1982). With no legitimate local interest
served, “there is nothing to be weighed . . . to sustain the
law.” Ibid. And even if some legitimate local interest
could be identifed, I am skeptical that any local benefts of
the State's assertion of jurisdiction in these circumstances
could overcome the serious burdens on interstate commerce
that it imposes. See, e. g., id., at 643–646; Raymond Motor
Transp., 434 U. S., at 444–446.
* * *
Because Pennsylvania Fire resolves this case in favor of
Page Proof Pending Publication
petitioner Mallory and no Commerce Clause challenge is be-
fore us, I join the Court's opinion as stated in Parts I and
III–B, and agree that the Pennsylvania Supreme Court's
judgment should be vacated and the case remanded for fur-
ther proceedings.
Justice Barrett, with whom The Chief Justice, Jus-
tice Kagan, and Justice Kavanaugh join, dissenting.
For 75 years, we have held that the Due Process Clause
does not allow state courts to assert general jurisdiction
over foreign defendants merely because they do business in
the State. International Shoe Co. v. Washington, 326 U. S.
310, 317 (1945). Pennsylvania nevertheless claims general
jurisdiction over all corporations that lawfully do business
within its borders. As the Commonwealth's own courts rec-
ognized, that fies in the face of our precedent. See Daimler
AG v. Bauman, 571 U. S. 117, 139–140 (2014).
The Court fnds a way around this settled rule. All a
State must do is compel a corporation to register to conduct
164 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
business there (as every State does) and enact a law making
registration suffcient for suit on any cause (as every State
could do). Then, every company doing business in the State
is subject to general jurisdiction based on implied “con-
sent”—not contacts. That includes suits, like this one, with
no connection whatsoever to the forum.
Such an approach does not formally overrule our tradi-
tional contacts-based approach to jurisdiction, but it might
as well. By relabeling their long-arm statutes, States may
now manufacture “consent” to personal jurisdiction. Be-
cause I would not permit state governments to circumvent
constitutional limits so easily, I respectfully dissent.
I
A
Personal jurisdiction is the authority of a court to issue a
judgment that binds a defendant. If a defendant submits to
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a court's authority, the court automatically acquires personal
jurisdiction. Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U. S. 694, 703 (1982). But if a de-
fendant contests the court's authority, the court must deter-
mine whether it can nevertheless assert coercive power over
the defendant. That calculus turns frst on the statute or
rule defning the persons within the court's reach. See
World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 290
(1980). It depends next on the Due Process Clause, which
guards a defendant's right to resist the judicial authority of
a sovereign to which it has an insuffcient tie. Interna-
tional Shoe, 326 U. S., at 316. The Clause has the compan-
ion role of ensuring that state courts “do not reach out be-
yond the limits imposed on them by their status as coequal
sovereigns in a federal system.” World-Wide Volkswagen,
444 U. S., at 291–292.
Our precedent divides personal jurisdiction into two cate-
gories: specifc and general. Both are subject to the de-
mands of the Due Process Clause. Specifc jurisdiction, as
Cite as: 600 U. S. 122 (2023) 165
Barrett, J., dissenting
its name suggests, allows a state court to adjudicate specifc
claims against a defendant. When a defendant “purpose-
fully avails itself of the privilege of conducting activities
within the forum State,” Hanson v. Denckla, 357 U. S. 235,
253 (1958), that State's courts may adjudicate claims that
“ ``arise out of or relate to the defendant's contacts' with the
forum,” Ford Motor Co. v. Montana Eighth Judicial Dist.
Court, 592 U. S. –––, ––– (2021) (quoting Bristol-Myers
Squibb Co. v. Superior Court of Cal., San Francisco Cty.,
582 U. S. 255, 262 (2017)).
General jurisdiction, by contrast, allows a state court to
adjudicate “ ``any and all claims' brought against a defend-
ant.” Ford Motor, 592 U. S., at ––– (quoting Goodyear Dun-
lop Tires Operations, S. A. v. Brown, 564 U. S. 915, 919
(2011)). This sweeping authority exists only when the de-
fendant's connection to the State is tight—so tight, in fact,
that the defendant is “ ``at home' ” there. Ford Motor, 592
U. S., at –––. An individual is typically “at home” in her
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domicile, Goodyear, 564 U. S., at 924, and a corporation is
typically “at home” in both its place of incorporation and
principal place of business, Daimler, 571 U. S., at 137. Ab-
sent an exceptional circumstance, general jurisdiction is cab-
ined to these locations. Id., at 139.
B
This case involves a Pennsylvania statute authorizing
courts to exercise general jurisdiction over corporations that
are not “at home” in the Commonwealth. All foreign corpo-
rations must register to do business in Pennsylvania, 15 Pa.
Cons. Stat. § 411(a) (2014), and all registrants are subject to
suit on “any cause” in the Commonwealth's courts, 42 Pa.
Cons. Stat. §§ 5301(a)(2)(i), (b) (2019). Section 5301 thus
purports to empower Pennsylvania courts to adjudicate any
and all claims against corporations doing business there.
As the Pennsylvania Supreme Court recognized, this stat-
ute “clearly, palpably, and plainly violates the Constitution.”
166 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
266 A. 3d 542, 565–566 (2021). Look no further than BNSF
R. Co. v. Tyrrell, a case with remarkably similar facts—and
one that the Court conspicuously ignores. 581 U. S. 402(2017). There, we assessed whether Montana's courts could
exercise general jurisdiction over the BNSF railroad. No
plaintiff resided in Montana or suffered an injury there.
Like Mallory, one of the plaintiffs alleged that the railroad
exposed him to toxic substances that caused his cancer. Id.,
at 406. Like Norfolk Southern, BNSF had tracks and em-
ployees in the forum, but it was neither incorporated nor
headquartered there. Id., at 406–407. We rejected Mon-
tana's assertion of general jurisdiction over BNSF because
“in-state business . . . does not suffce to permit the assertion
of general jurisdiction over claims . . . that are unrelated to
any activity occurring in [the State].” Id., at 414. Daimler
and Goodyear, we explained, could not have made that any
clearer. BNSF, 581 U. S., at 414.
The same rule applies here. The Pennsylvania statute an-
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nounces that registering to do business in the Common-
wealth “shall constitute a suffcient basis” for general juris-
diction. § 5301(a). But as our precedent makes crystal
clear, simply doing business is insuffcient. Absent an ex-
ceptional circumstance, a corporation is subject to general
jurisdiction only in a State where it is incorporated or has
its principal place of business. Ford Motor, 592 U. S., at –––;
Daimler, 571 U. S., at 139; Goodyear, 564 U. S., at 924. Add-
ing the antecedent step of registration does not change that
conclusion. If it did, “every corporation would be subject to
general jurisdiction in every state in which it registered, and
Daimler's ruling would be robbed of meaning by a back-door
thief.” Brown v. Lockheed Martin Corp., 814 F. 3d 619, 640
(CA2 2016).
II
A
The Court short-circuits this precedent by characterizing
this case as one about consent rather than contacts-based
Cite as: 600 U. S. 122 (2023) 167
Barrett, J., dissenting
jurisdiction. Consent is an established basis for personal ju-
risdiction, which is, after all, a waivable defense. “A variety
of legal arrangements have been taken to represent express
or implied consent to the personal jurisdiction of the court,”
including contract, stipulation, and in-court appearance. In-
surance Corp. of Ireland, 456 U. S., at 703–704. Today, the
Court adds corporate registration to the list.
This argument begins on shaky ground, because Pennsyl-
vania itself does not treat registration as synonymous with
consent. Section 5301(a)(2)(i) baldly asserts that “qualifca-
tion as a foreign corporation” in the Commonwealth is a suf-
fcient hook for general jurisdiction. The next subsection
(invoked by neither Mallory nor the Court) permits the exer-
cise of general jurisdiction over a corporation based on
“[c]onsent, to the extent authorized by the consent. ”
§ 5301(a)(2)(ii). If registration were actual consent, one
would expect to see some mention of jurisdiction in Norfolk
Page Proof Pending Publication
Southern's registration paperwork—which is instead wholly
silent on the matter. App. 1–7. What Mallory calls “con-
sent” is what the Pennsylvania Supreme Court called “com-
pelled submission to general jurisdiction by legislative com-
mand.” 266 A. 3d, at 569. Corporate registration triggers
a statutory repercussion, but that is not “consent” in a con-
ventional sense of the word.
To pull § 5301(a)(2)(i) under the umbrella of consent, the
Court, following Mallory, casts it as setting the terms of a
bargain: In exchange for access to the Pennsylvania market,
a corporation must allow the Commonwealth's courts to ad-
judicate any and all claims against it, even those (like Mal-
lory's) having nothing to do with Pennsylvania. Brief for
Petitioner 27–28. Everyone is charged with knowledge of
the law, so corporations are on notice of the deal. By regis-
tering, they agree to its terms.
While this is a clever theory, it falls apart on inspection.
The Court grounds consent in a corporation's choice to regis-
ter with knowledge (constructive or actual) of the jurisdic-
168 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
tional consequences. Ante, at 134–135, 144 (“proceed[ing]
anyway” in light of “the jurisdictional consequences attend-
ing these actions”); ante, at 151 (Alito, J., concurring in part
and concurring in judgment) (basing “consent” on “pre-
sume[d]” knowledge of state law); ante, at 149 (Jackson, J.,
concurring) (“register[ing] and do[ing] business in Pennsyl-
vania despite the jurisdictional consequences”). But on that
logic, any long-arm statute could be said to elicit consent.
Imagine a law that simply provides, “any corporation doing
business in this State is subject to general jurisdiction in our
courts.” Such a law defes our precedent, which, again,
holds that “in-state business . . . does not suffce to permit
the assertion of general jurisdiction.” BNSF, 581 U. S., at
414. Yet this hypothetical law, like the Pennsylvania stat-
ute, gives notice that general jurisdiction is the price of
doing business. And its “notice” is no less “clear” than
Pennsylvania's. Ante, at 153 (opinion of Alito, J.). So on
the Court's reasoning, corporations that choose to do busi-
Page Proof Pending Publication
ness in the State impliedly consent to general jurisdiction.
The result: A State could defeat the Due Process Clause by
adopting a law at odds with the Due Process Clause.
That makes no sense. If the hypothetical statute over-
reaches, then Pennsylvania's does too. As the United States
observes, “[i]nvoking the label ``consent' rather than ``general
jurisdiction' does not render Pennsylvania's long-arm statute
constitutional.” Brief for United States as Amicus Curiae
4. Yet the Court takes this route without so much as ac-
knowledging its circularity.
B
While our due process precedent permits States to place
reasonable conditions on foreign corporations in exchange for
access to their markets, there is nothing reasonable about a
State extracting consent in cases where it has “no connection
whatsoever.” 266 A. 3d, at 566; Bristol-Myers, 582 U. S., at
263; see Lafayette Ins. Co. v. French, 18 How. 404, 407 (1856).
Cite as: 600 U. S. 122 (2023) 169
Barrett, J., dissenting
The Due Process Clause protects more than the rights of
defendants—it also protects interstate federalism. We have
emphasized this principle in case after case. For instance,
in Hanson v. Denckla, we stressed that “restrictions” on per-
sonal jurisdiction “are more than a guarantee of immunity
from inconvenient or distant litigation. They are a conse-
quence of territorial limitations on the power of the respec-
tive States.” 357 U. S., at 250–251. In World-Wide Volks-
wagen, we explained that “[e]ven if the defendant would
suffer minimal or no inconvenience from being forced to liti-
gate before the tribunals of another State . . . the Due Proc-
ess Clause, acting as an instrument of interstate federalism,
may sometimes act to divest the State of its power to render
a valid judgment.” 444 U. S., at 294. And in Bristol-
Myers, we reinforced that “this federalism interest may be
decisive.” 582 U. S., at 263; see also, e. g., Ford Motor, 592
U. S., at –––; Asahi Metal Industry Co. v. Superior Court of
Cal., Solano Cty., 480 U. S. 102, 113, 115 (1987); Interna-
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tional Shoe, 326 U. S., at 317. A defendant's ability to waive
its objection to personal jurisdiction refects that the Clause
protects, frst and foremost, an individual right. But when
a State announces a blanket rule that ignores the territorial
boundaries on its power, federalism interests are implicated
too.
Pennsylvania's effort to assert general jurisdiction over
every company doing business within its borders infringes
on the sovereignty of its sister States in a way no less “exor-
bitant” and “grasping” than attempts we have previously re-
jected.1 Daimler, 571 U. S., at 121–122, 138–139. Condi-
1
This case provides a “textbook example” of overreach at the expense
of other States. 266 A. 3d 542, 567 (Pa. 2021). Virginia has considerable
connections to Mallory's suit: Mallory lives in Virginia, Norfolk Southern
is a Virginia corporation, Mallory's injuries arose—at least in part—from
his employment in Virginia, and he was diagnosed with cancer there. See
ante, at 126; Tr. of Oral Arg. 39. Pennsylvania, by contrast, “has no legiti-
mate interest in a controversy with no connection to the Commonwealth
170 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
tions on doing in-state business cannot be “inconsistent with
those rules of public law which secure the jurisdiction and
authority of each State from encroachment by all others.”
Lafayette, 18 How., at 407; St. Clair v. Cox, 106 U. S. 350,
356 (1882). Permitting Pennsylvania to impose a blanket
claim of authority over controversies with no connection to
the Commonwealth intrudes on the prerogatives of other
States—domestic and foreign—to adjudicate the rights of
their citizens and enforce their own laws. See Ford Motor,
592 U. S., at ––– – –––; Daimler, 571 U. S., at 141–142.
The plurality's response is to fall back, yet again, on “con-
sent.” Ante, at 144, 146, n. 11. In its view, because a de-
fendant can waive its personal jurisdiction right, a State can
never overreach in demanding its relinquishment. Ibid.;
see also ante, at 156 (opinion of Alito, J.); ante, at 147–149
(opinion of Jackson, J.). That is not how we treat rights
with structural components. The right to remove a case to
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federal court, for instance, is primarily personal—it secures
for a nonresident defendant a federal forum thought to be
more impartial. See The Federalist No. 80, p. 478 (C. Ros-
siter ed. 1961) (A. Hamilton). At the same time, however, it
serves federal interests by ensuring that federal courts can
vindicate federal rights. See, e. g., Georgia v. Rachel, 384
U. S. 780, 804–805 (1966). Recognizing this dual role, we
have rejected efforts of States to require defendants to relin-
quish this (waivable) right to removal as a condition of doing
business. See Home Ins. Co. v. Morse, 20 Wall. 445, 453,
456–458 (1874) (citing Lafayette, 18 How., at 407); Barron v.
Burnside, 121 U. S. 186, 196–198 (1887) (“[W]hile the right
to remove a suit might be waived,” a statute may not require
a foreign corporation “to forfeit [its] rights at all times and
on all occasions, whenever the case might be presented”).
The same logic applies here. Pennsylvania's power grab in-
that was fled by a non-resident against a foreign corporation.” 266 A.
3d, at 567.
Cite as: 600 U. S. 122 (2023) 171
Barrett, J., dissenting
fringes on more than just the rights of defendants—it upsets
the proper role of the States in our federal system.
III
A
The plurality attempts to minimize the novelty of its con-
clusion by pointing to our decision in Burnham v. Superior
Court of Cal., County of Marin, 495 U. S. 604 (1990). There,
we considered whether “tag jurisdiction”—personal service
upon a defendant physically present in the forum State—
remains an effective basis for general jurisdiction after In-
ternational Shoe. Burnham, 495 U. S., at 607 (opinion of
Scalia, J.). We unanimously agreed that it does. Id., at 619,
622; id., at 628 (White, J., concurring in part and concurring
in judgment); id., at 628–629 (Brennan, J., concurring in judg-
ment); id., at 640 (Stevens, J., concurring in judgment). The
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plurality claims that registration jurisdiction for a corpora-
tion is just as valid as the “tag jurisdiction” that we ap-
proved in Burnham. But in drawing this analogy, the plu-
rality omits any discussion of Burnham's reasoning.
In Burnham, we acknowledged that tag jurisdiction would
not satisfy the contacts-based test for general jurisdiction.
Nonetheless, we reasoned that tag jurisdiction is “both
frmly approved by tradition and still favored,” making it
“one of the continuing traditions of our legal system that
defne[s] the due process standard of ``traditional notions of
fair play and substantial justice.' ” Id., at 619 (opinion of
Scalia, J.) (quoting International Shoe, 326 U. S., at 316); see
also 495 U. S., at 635–637 (Brennan, J., concurring in judg-
ment) (a jurisdictional rule that refects “our common under-
standing now, fortifed by a century of judicial practice, . . .
is entitled to a strong presumption that it comports with due
process”). Burnham thus permits a longstanding and still-
accepted basis for jurisdiction to pass International Shoe's
test.
172 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
General-jurisdiction-by-registration funks both of these
prongs: It is neither “frmly approved by tradition” nor “still
favored.” 495 U. S., at 622 (opinion of Scalia, J.). Thus, the
plurality's analogy to tag jurisdiction is superfcial at best.
Start with the second prong. In Burnham, “[w]e [did] not
know of a single state . . . that [had] abandoned in-state serv-
ice as a basis of jurisdiction.” Id., at 615. Here, as Mallory
concedes, Pennsylvania is the only State with a statute
treating registration as suffcient for general jurisdiction.
Tr. of Oral Arg. 47. Indeed, quite a few have jettisoned the
jurisdictional consequences of corporate registration alto-
gether—and in no uncertain terms. See, e. g., Chavez v.
Bridgestone Americas Tire Operations, LLC, 2022–NMSC–
006, ¶¶1, 53–54, 503 P. 3d 332, 336, 349 (“Reliance upon out-
dated legal fctions . . . would be absurd and, as explained
above, inconsistent with contemporary understandings of
due process”); Genuine Parts Co. v. Cepec, 137 A. 3d 123, 137
(Del. 2016) (“[W]e no longer live in a time where foreign
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corporations cannot operate in other states unless they
somehow become a resident”); see also DeLeon v. BNSF
R. Co., 392 Mont. 446, 453, n. 1, 426 P. 3d 1, 7, n. 1 (2018)
(listing States with statutes that do not permit the prac-
tice).2 With the Pennsylvania Legislature standing alone,
the plurality does not even attempt to describe this method
of securing general jurisdiction as “still favored,” Burnham,
495 U. S., at 622 (opinion of Scalia, J.), or refective of “our
common understanding now,” id., at 635–637 (Brennan, J.,
concurring in judgment) (emphasis deleted). Quite the op-
2
The plurality offers only one other State that (through its Supreme
Court) has treated foreign corporate registration as adequate support
for general jurisdiction following Daimler and Goodyear. See Cooper
Tire & Rubber Co. v. McCall, 312 Ga. 422, 436–437, 863 S. E. 2d 81, 92
(2021). There, a judicial precedent, not a long-arm statute, maintained
that registration justifed general jurisdiction. Applying the consent the-
ory, the Georgia Supreme Court held that corporations that choose to do
business in the State are on notice of the jurisdictional consequences of
its case law. Id., at 434, 863 S. E. 2d, at 90.
Cite as: 600 U. S. 122 (2023) 173
Barrett, J., dissenting
posite: The plurality denigrates “the spirit of our age”—re-
fected by the vast majority of States—and appeals to its
own notions of fairness. Ante, at 141–143.
The past is as fatal to the plurality's theory as the present.
Burnham's tradition prong asks whether a method for secur-
ing jurisdiction was “shared by American courts at the cru-
cial time”—“1868, when the Fourteenth Amendment was
adopted.” 495 U. S., at 611 (opinion of Scalia, J.). But the
plurality cannot identify a single case from that period sup-
porting its theory.3 In fact, the evidence runs in the oppo-
site direction. Statutes that required the appointment of a
registered agent for service of process were far more modest
than Pennsylvania's.4 And even when a statute was written
more broadly, state courts generally understood it to implic-
itly limit jurisdiction to suits with a connection to the forum.
3
The plurality argues that the uniform practice of state courts at the
time of ratifcation is inapposite because no state court held that general-
Page Proof Pending Publication
jurisdiction-by-registration violates the Fourteenth Amendment. Ante,
at 131, n. 4. This approach refects a misunderstanding of Burnham.
The inquiry is not whether courts rejected a process for obtaining jurisdic-
tion as unconstitutional. It is whether courts actually used—and con-
tinue to use—the challenged process. 495 U. S., at 622 (opinion of Scalia,
J.); see also Hurtado v. California, 110 U. S. 516, 528 (1884) (“[A] process
of law . . . must be taken to be due process of law” if it “has been immemo-
rially the actual law of the land”). Registration jurisdiction falls short on
both fronts.
4
Many States expressly limited their statutes to disputes with a connec-
tion to the State. See, e. g., Ind. Code § 25–2 (1852) (foreign corporations
must consent to actions “arising out of any transaction in this State”),
App. to Brief for Petitioner 47a; Conn. Gen. Stat. § 7–389 (1866) (foreign
insurance companies must appoint an in-state agent to accept process “in
all suits before any court in this state, for any liability incurred by such
company or association in this state”), App. to Brief for Petitioner 18a;
Md. Code Ann. § 26–211 (1868) (foreign corporation may be sued by non-
resident “when the cause of action has arisen, or the subject of the action
shall be situate[d] in this state”), App. to Brief for Petitioner 90a; S. C.
Code Ann. § 13–1–422(2) (1873) (nonresident may sue a foreign corporation
“when the cause of action shall have arisen, or the subject of the action
shall be situated, within this State”), App. to Brief for Petitioner 227a.
174 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
The state reporters are replete with examples of judicial de-
cisions that stood by the then-prevailing rule: Compliance
with a registration law did not subject a foreign corporation
to suit on any cause in a State, but only those related to the
forum. Smith v. Mutual Life Ins. Co. of N. Y., 96 Mass. 336,
340–343 (1867); see also, e. g., Camden Rolling Mill v. Swede
Iron Co., 32 N. J. L. 15, 18 (1866) (rejecting a statutory con-
struction that would “place within the jurisdiction of our
courts, all the corporations of the world”); Newell v. Great
W. R. Co. of Canada, 19 Mich. 336, 345–346 (1869) (legislature
“could never have intended . . . to make our tribunals, main-
tained by the people of Michigan, the arbiters of differences
in which our citizens have no interest”); Sawyer v. North
Am. Life Ins. Co., 46 Vt. 697, 707 (1874) (broadly worded
statute did not reach a corporate “party not a resident, on a
cause of action which did not accrue here”); Central R. &
Banking Co. v. Carr, 76 Ala. 388, 393 (1884) (collecting
cases).5 Our cases from this era articulate the same line.
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See, e. g., Lafayette, 18 How., at 407 (statutory consent to suit
may reach “contracts made and to be performed within that
State”); St. Clair, 106 U. S., at 356–357 (statutory consent
permitted for suits “arising out of [a foreign corporation's]
transactions in the State”); Old Wayne Mut. Life Assn. of
Indianapolis v. McDonough, 204 U. S. 8, 21 (1907) (“[I]t can-
not be held that the company agreed that service of process
. . . would alone be suffcient to bring it into court in respect
of all business transacted by it, no matter where”); Simon v.
Southern R. Co., 236 U. S. 115, 130 (1915) (“statutory consent
of a foreign corporation to be sued does not extend to causes
of action arising in other states”). Although “plaintiffs typi-
5
Mallory cannot fnd an example of an exercise of registration jurisdic-
tion without a forum connection until 1882. See Johnston v. Trade Ins.
Co., 132 Mass. 432, 434–435. But even that example ignores Massachu-
setts's rejection of registration jurisdiction for cases with no connection
to the forum in 1867—the year it ratifed the Fourteenth Amendment.
See Smith, 96 Mass., at 340–343.
Cite as: 600 U. S. 122 (2023) 175
Barrett, J., dissenting
cally did not sue defendants in fora that had no rational rela-
tion to causes of action,” Genuine Parts, 137 A. 3d, at 146,
courts repeatedly turned them away when they did.
B
Sidestepping Burnham's logic, the plurality seizes on its
bottom-line approval of tag jurisdiction. According to the
plurality, tag jurisdiction (based on physical presence) and
registration jurisdiction (based on deemed consent) are es-
sentially the same thing—so by blessing one, Burnham
blessed the other. See ante, at 125–126, 139–140. The plu-
rality never explains why they are the same, even though—
as we have just discussed—more than a century's worth of
law treats them as distinct. See also Burnham, 495 U. S.,
at 610, n. 1 (opinion of Scalia, J.) (corporations “have never
f[t] comfortably in a jurisdictional regime based primarily
upon ``de facto power over the defendant's person' ”); Inter-
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national Shoe, 326 U. S., at 316–317. The plurality's ration-
ale seems to be that if a person is subject to general jurisdic-
tion anywhere she is present, then a corporation should be
subject to general jurisdiction anywhere it does business.
See ante, at 125–126, 129–130, 132–134, 139–140, 145. That
is not only a non sequitur—it is “contrary to the historical
rationale of International Shoe.” Wenche Siemer v. Learjet
Acquisition Corp., 966 F. 2d 179, 183 (CA5 1992).
Before International Shoe, a state court's power over a
person turned strictly on “service of process within the
State” (presence) “or [her] voluntary appearance” (consent).
Pennoyer v. Neff, 95 U. S. 714, 733 (1878). In response to
changes in interstate business and transportation in the late
19th and early 20th centuries, States deployed new legal fc-
tions designed to secure the presence or consent of nonresi-
dent individuals and foreign corporations. For example,
state laws required nonresident drivers to give their “im-
plied consent” to be sued for their in-state accidents as a
condition of using the road. Hess v. Pawloski, 274 U. S. 352,
176 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
356 (1927); World-Wide Volkswagen, 444 U. S., at 296, n. 11.
And foreign corporations, as we have discussed, were re-
quired by statute to “consent” to the appointment of a resi-
dent agent, so that the company could then be constructively
“present” for in-state service. Mutual Reserve Fund Life
Assn. v. Phelps, 190 U. S. 147, 158–159 (1903); see St. Clair,
106 U. S., at 356.
As Justice Scalia explained, such extensions of “consent
and presence were purely fctional” and can no longer stand
after International Shoe. Burnham, 495 U. S., at 618; see
also, e. g., Shaffer v. Heitner, 433 U. S. 186, 202–203 (1977)
(International Shoe abandoned “both the fctions of implied
consent to service on the part of a foreign corporation and
of corporate presence”); McGee v. International Life Ins.
Co., 355 U. S. 220, 222 (1957) (International Shoe “abandoned
``consent,' ``doing business,' and ``presence' as the standard for
measuring the extent of state judicial power over [foreign]
corporations”); International Shoe, 326 U. S., at 318. The
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very point of International Shoe was to “cast . . . aside” the
legal fctions built on the old territorial approach to personal
jurisdiction and replace them with its contacts-based test.
Burnham, 495 U. S., at 618 (opinion of Scalia, J.); id., at 630(Brennan, J., concurring in judgment) (International Shoe
abandoned the previous “ ``patchwork of legal and factual fc-
tions' ”). In Burnham, we upheld tag jurisdiction because
it is not one of those fctions—it is presence. By contrast,
Pennsylvania's registration statute is based on deemed con-
sent. And this kind of legally implied consent is one of the
very fctions that our decision in International Shoe swept
away. See 326 U. S., at 318; Ford Motor, 592 U. S., at –––
(Gorsuch, J., concurring in judgment).
C
Neither Justice Alito nor the plurality seriously con-
tests this history. Nor does either deny that Mallory's
theory would gut Daimler. Instead, they insist that we al-
Cite as: 600 U. S. 122 (2023) 177
Barrett, J., dissenting
ready decided this question in a pre-International Shoe
precedent: Pennsylvania Fire Ins. Co. of Philadelphia v.
Gold Issue Mining & Milling Co., 243 U. S. 93 (1917).
In Pennsylvania Fire, an Arizona corporation sued a
Pennsylvania corporation in Missouri for a claim arising from
an insurance contract issued in Colorado and protecting
property in Colorado. Id., at 94. The defendant main-
tained that the Missouri court lacked personal jurisdiction
over it because the plaintiff's claim had no connection to the
forum. Id., at 94–95. But in compliance with Missouri law,
the defendant company had previously fled “a power of at-
torney consenting that service of process upon the superin-
tendent [of the State's insurance department] should be
deemed personal service upon the company.” Id., at 94.
The Missouri Supreme Court construed that power of attor-
ney as express consent to personal jurisdiction in Missouri
in any case whatsoever, and this Court held that “the con-
struction did not deprive the defendant of due process of
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law.” Id., at 95.6
The Court asserts that Pennsylvania Fire controls our
decision today. I disagree. The case was “decided before
this Court's transformative decision on personal jurisdiction
in International Shoe,” BNSF, 581 U. S., at 412, and we have
already stated that “prior decisions [that] are inconsistent
with this standard . . . are overruled,” Shaffer, 433 U. S., at
212, n. 39. Pennsylvania Fire fts that bill. Time and
6
The plurality praises the Missouri Supreme Court's “carefu[l]” and
“thoughtful opinion.” Ante, at 132–133. Only a decade later, however,
the same court unanimously concluded that it had misinterpreted the
reach of the statute and overruled this aggressive approach. State ex rel.
Am. Central Life Ins. Co. v. Landwehr, 318 Mo. 181, 190–192, 300 S. W.
294, 297–298 (1927) (requiring a connection to Missouri); State ex rel. Phoe-
nix Mut. Life Ins. Co. of Hartford v. Harris, 343 Mo. 252, 258–260, 121
S. W. 2d 141, 145–146 (1938). This remains the rule in Missouri today:
Compliance with its registration statute does not constitute consent to
general jurisdiction. State ex rel. Norfolk Southern R. Co. v. Dolan, 512
S. W. 3d 41, 52–53, and n. 11 (Mo. 2017).
178 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
again, we have reinforced that “ ``doing business' tests”—like
those “framed before specifc jurisdiction evolved in the
United States”—are not a valid basis for general jurisdiction.
Daimler, 571 U. S., at 140, n. 20. The only innovation of
Pennsylvania's statute is to make “doing business” synony-
mous with “consent.” If Pennsylvania Fire endorses that
trick, then Pennsylvania Fire is no longer good law.
The plurality tries to get around International Shoe by
claiming that it did no more than expand jurisdiction, affect-
ing nothing that came before it.7 Ante, at 138–139. That
is as fctional as the old concept of “corporate presence” on
which the plurality relies. We have previously abandoned
even “ancient” bases of jurisdiction for incompatibility with
International Shoe. Shaffer, 433 U. S., at 211–212 (repu-
diating quasi in rem jurisdiction). And we have repeat-
edly reminded litigants not to put much stock in our pre-
International Shoe decisions. Shaffer, 433 U. S., at 212,
n. 39; see also BNSF, 581 U. S., at 412. Daimler itself rein-
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forces that pre-International Shoe decisions “should not at-
tract heavy reliance today.” 571 U. S., at 138, n. 18. Over
and over, we have reminded litigants that International
Shoe is “canonical,” “seminal,” “pathmarking,” and even “mo-
mentous”—to give just a few examples. Ford Motor, 592
U. S., at –––; Bristol-Myers, 582 U. S., at 262; Daimler, 571
U. S., at 128; Goodyear, 564 U. S., at 919. Yet the Court acts
as if none of this ever happened.
In any event, I doubt Pennsylvania Fire would control
this case even if it remained valid. Pennsylvania Fire dis-
tinguished between express consent (that is, consent “actu-
ally . . . conferred by [the] document”) and deemed con-
sent (inferred from doing business). 243 U. S., at 95–96; see
7
While International Shoe expanded the bases for specifc jurisdiction,
it did no such thing for general jurisdiction. On the contrary, Interna-
tional Shoe itself recognized that general jurisdiction for a corporation
exists in its “ ``home' or principal place of business.” 326 U. S. 310, 317
(1945). That line has remained constant.
Cite as: 600 U. S. 122 (2023) 179
Barrett, J., dissenting
also Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S.
165, 175 (1939) (basing jurisdiction on “fnding an actual con-
sent” (emphasis added)). As Judge Learned Hand empha-
sized in a decision invoked by the plurality, without “express
consent,” the normal rules apply. Smolik v. Philadelphia &
Reading Coal & Iron Co., 222 F. 148, 150–151 (SDNY 1915).
The express power of attorney in Pennsylvania Fire
“made service on the [insurance] superintendent the equiva-
lent of . . . a corporate vote [that] had accepted service in
this specifc case.” 243 U. S., at 95. Norfolk Southern, by
contrast, “executed no document like the power of attorney
there.” Brief for Respondent 31; see App. 1–7. The Court
makes much of what Norfolk Southern did write on its forms,
ante, at 135: It named a “Commercial Registered Offce Pro-
vider,” App. 1, 6, it notifed Pennsylvania of a merger, id., at
3–5, and it paid $70 to update its paperwork, id., at 6. None
of those documents use the word “agent,” nothing hints at
the word “jurisdiction,” and (as the Pennsylvania Supreme
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Court explained) nothing about that registration is “volun-
tary.” 266 A. 3d, at 570, and n. 20.8 Consent in Pennsylva-
nia Fire was contained in the document itself; here it is
deemed by statute. If “mere formalities” matter as much
as the plurality says they do, it should respect this one too.
Ante, at 144.
IV
By now, it should be clear that the plurality's primary ap-
proach to this case is to look past our personal jurisdiction
precedent. Relying on a factsheet downloaded from the in-
ternet, for instance, the plurality argues that Norfolk South-
ern is such a “part of ``the Pennsylvania Community,' ” and
8
I agree with the Court that no “magic words” are necessary to es-
tablish valid consent. Ante, at 136, n. 5. But when the statutory
scheme itself distinguishes between actual “consent” and registration,
§§ 5301(a)(2)(i), (ii), and when the Pennsylvania Supreme Court sees a dif-
ference between the two, it is quite a stretch to treat them as one and
the same.
180 MALLORY v. NORFOLK SOUTHERN R. CO.
Barrett, J., dissenting
does so much business there, that its “presence” in Pennsyl-
vania is enough to require it to stand for suits having nothing
to do with the Commonwealth. Ante, at 141–143; see also
ante, at 153–154 (opinion of Alito, J.).9 In Daimler, how-
ever, we roundly rejected the plaintiff's request that we “ap-
prove the exercise of general jurisdiction in every State in
which a corporation ``engages in a substantial, continuous,
and systematic course of business.' ” 571 U. S., at 138. The
established test—which the plurality barely acknowledges—
is whether the corporation is “at home” in the State. “A
corporation that operates in many places,” and must there-
fore register in just as many, “can scarcely be deemed at
home in all of them.” Id., at 140, n. 20.
* * *
Critics of Daimler and Goodyear may be happy to see
them go. See, e. g., Ford Motor, 592 U. S., at ––– (Alito, J.,
concurring in judgment); id., at ––– – ––– (Gorsuch, J.,
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joined by Thomas, J., concurring in judgment); BNSF, 581
U. S., at 416 (Sotomayor, J., concurring in part and dissent-
ing in part). And make no mistake: They are halfway out
the door. If States take up the Court's invitation to manipu-
late registration, Daimler and Goodyear will be obsolete,
and, at least for corporations, specifc jurisdiction will be “su-
perfuous.” Daimler, 571 U. S., at 140; see Goodyear, 564
U. S., at 925. Because I would not work this sea change, I
respectfully dissent.
9
Mallory, by contrast, chooses to rest his case for jurisdiction on regis-
tration and registration alone. Tr. of Oral Arg. 49 (“We're relying on
consent and consent alone. Without consent, we don't prevail”). Appar-
ently dissatisfed with this concession, the plurality fnds its own facts and
develops its own argument. That is not how we usually do things. See
United States v. Sineneng-Smith, 590 U. S. –––, ––– – ––– (2020).
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
Page Proof Pending Publication
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None