Mallory v. Norfolk Southern R. Co

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
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, first in Ohio, then in Virginia. After he left the
company, Mr. Mallory moved to Pennsylvania for a period before re-
turning to Virginia. Along the way he was diagnosed with cancer. Be-
cause he attributed his illness to his work at Norfolk Southern, Mr.
Mallory sued his former employer under the Federal Employers’ Lia-
bility Act, 45 U. S. C. §§51–60, a federal workers’ compensation scheme
permitting railroad employees to recover damages for their employers’
negligence. Mr. Mallory filed his lawsuit in Pennsylvania state court.
Norfolk Southern—a company incorporated in Virginia and headquar-
tered 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 complaint was filed, 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 Pennsylvania, 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] ex-
tensive’ ” operations there. 266 A. 3d 542, 562; see 15 Pa. Cons. Stat.
§411(a). And Pennsylvania requires out-of-state companies that reg-
ister 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. Mal-
lory submitted, Norfolk Southern had consented to suit in Pennsylva-
nia on claims just like his.
The Pennsylvania Supreme Court sided with Norfolk Southern.
2 MALLORY v. NORFOLK SOUTHERN R. CO.
Syllabus
That court found that the Pennsylvania law—requiring an out-of-state
firm to answer in the Commonwealth any suits against it in exchange
for status as a registered foreign corporation and the benefits that en-
tails—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 Min-
ing & Milling Co., 243 U. S. 93. Much like the Missouri law that the
Court in Pennsylvania Fire found to comport with the Due Process
Clause, the Pennsylvania law at issue here provides that an out-of-
state corporation “may not do business in this Commonwealth until it
registers with” the Department of State. 15 Pa. Cons. Stat. §411(a).
Among other things, Pennsylvania law is explicit that “qualification as
a foreign corporation” 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).
Norfolk Southern has complied with this law since 1998, when it reg-
istered to do business in Pennsylvania. Norfolk Southern applied for
a “Certificate of Authority” from the Commonwealth which, once ap-
proved, conferred on Norfolk Southern both the benefits 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
suffice to establish consent to suit. It is enough to acknowledge that
the state law and facts before the Court fall squarely within Pennsyl-
vania 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. 10–12.
266 A. 3d 542, vacated and remanded.
Cite as: 600 U. S. ____ (2023) 3
Syllabus
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., filed a concurring opinion. ALITO, J., filed an
opinion concurring in part and concurring in the judgment. BARRETT, J.,
filed a dissenting opinion, in which ROBERTS, C. J., and KAGAN and KA-
VANAUGH, JJ., joined.
Cite as: 600 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1168
_________________
ROBERT MALLORY, PETITIONER v. NORFOLK
SOUTHERN RAILWAY CO.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA, EASTERN DISTRICT
[June 27, 2023]
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 SOTOMAYOR,
and JUSTICE JACKSON join.
Imagine a lawsuit based on recent events. A few months
ago, a Norfolk Southern train derailed in Ohio near the
Pennsylvania border. Its cargo? Hazardous chemicals.
Some poured into a nearby creek; some burst into flames.
In the aftermath, many residents reported unusual symp-
toms. 1 Suppose an Ohio resident sued the train conductor
seeking compensation for an illness attributed to the acci-
dent. Suppose, too, that the plaintiff served his complaint
on the conductor across the border in Pennsylvania. Eve-
ryone before us agrees a Pennsylvania court could hear that
lawsuit consistent with the Due Process Clause of the Four-
teenth Amendment. The court could do so even if the con-
ductor was a Virginia resident who just happened to be
passing through Pennsylvania when the process server
——————
1 See U. S. Environmental Protection Agency, East Palestine, Ohio
Train Derailment (June 21, 2023), https://www.epa.gov/east-palestine-
oh-train-derailment.
2 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
caught up with him.
Now, change the hypothetical slightly. Imagine the same
Ohio resident brought the same suit in the same Pennsyl-
vania state court, but this time against Norfolk Southern.
Assume, too, the company has filed paperwork consenting
to appear in Pennsylvania courts as a condition of register-
ing to do business in the Commonwealth. Could a Pennsyl-
vania court hear that case too? You might think so. But
today, Norfolk Southern argues that the Due Process
Clause entitles 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, first in Ohio, then in Vir-
ginia. During his time with the company, Mr. Mallory
contends, 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 al-
leges, 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 Penn-
sylvania lawyers and sued his former employer in Pennsyl-
vania 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 rail-
road employees 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 filed his complaint, the com-
Cite as: 600 U. S. ____ (2023) 3
Opinion of the Court
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.
Mr. Mallory saw things differently. He noted that Nor-
folk Southern manages over 2,000 miles of track, operates
11 rail yards, and runs 3 locomotive repair shops in Penn-
sylvania. He also pointed out that Norfolk Southern has
registered to do business in Pennsylvania in light of its
“ ‘regular, systematic, [and] extensive’ ” operations there.
266 A. 3d 542, 562 (Pa. 2021); see 15 Pa. Cons. Stat. §411(a)
(2014). That is significant, Mr. Mallory argued, because
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) (2019); see 266 A. 3d, at 564.
By complying with this statutory scheme, Mr. Mallory con-
tended, Norfolk Southern had consented to suit in Pennsyl-
vania on claims just like his.
Ultimately, the Pennsylvania Supreme Court sided with
Norfolk Southern. Yes, Mr. Mallory correctly read Pennsyl-
vania law. It requires an out-of-state firm to answer any
suits against it in exchange for status as a registered for-
eign corporation and the benefits that entails. 266 A. 3d, at
561–563. But, no, the court held, Mr. Mallory could not in-
voke that law because it violates the Due Process Clause.
Id., at 564–568. In reaching this conclusion, the Pennsyl-
vania Supreme Court acknowledged its disagreement with
the Georgia Supreme Court, which had recently rejected a
——————
2 After Mr. Mallory commenced this suit, Norfolk Southern relocated
its headquarters to Georgia. See Brief for Respondent 5.
4 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
similar due process 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
Fourteenth 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
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 Conflict of Laws
§539, pp. 450–451 (1834) (Story); see also United States v.
Union Pacific R. Co., 98 U. S. 569, 602–603 (1879). That
principle applied to all kinds of actions, but cashed out dif-
ferently based on the object of the court’s attention. So, for
example, an action in rem that claimed an interest in im-
movable 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
——————
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
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. ____ (2023) 5
Opinion of the Court
the Laws of England 117–118, 294 (1768). Meanwhile, an
in personam suit against an individual “for injuries that
might have happened 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 be-
tween local and transitory actions in a case brought by a
Virginia plaintiff against a Kentucky defendant based on a
fraud perpetrated in Ohio. Massie v. Watts, 6 Cranch 148,
162–163 (1810). Because the action was a transitory one
that followed the individual, he held, the suit could be main-
tained “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 nat-
ural 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 approved
the state court’s exercise of personal jurisdiction over Mr.
Burnham as consistent with the Due Process Clause—and
did so even though the Burnhams had spent nearly all their
married life in New Jersey and Mr. Burnham still resided
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 (Ste-
vens, J., concurring in judgment).
6 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
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 artificial
persons created by law. Unsurprisingly, corporations did
not relish the prospect of being haled into court for any
claim anywhere 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) (slip op.,
at 7). 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 firms sought to hide behind
their foreign character 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 ratification, 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 benefits enjoyed by in-state corpo-
rations. 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 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 fed-
eral government) omitted both of these limitations. They
required all out-of-state corporations that registered to do
Cite as: 600 U. S. ____ (2023) 7
Opinion of the Court
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
another group of States applied this all-purpose-jurisdic-
tion rule to a subset of corporate defendants, like railroads
and insurance 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 his statutory appendix. See App. to Brief
for Petitioner 1a–274a. 4
——————
4 Norfolk Southern and the dissent observe that some state courts ap-
plied these laws narrowly. Brief for Respondent 43–44; post, at 11–12,
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 identified 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
Pennsylvania’s “ ‘offen[d] some principle of justice so rooted in the tradi-
tions 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 sup-
poses, that the practice of States or their courts is irrelevant. Post, at 11,
n. 3. Our point is simply that Norfolk Southern has not met its burden
of showing that original and historic understandings of due process fore-
close consent statutes.
8 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
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
Pennsylvania Fire.
That case arose this way. Pennsylvania Fire was an in-
surance company incorporated under the laws of Pennsyl-
vania. In 1909, the company executed a contract in Colo-
rado to insure a smelter located near the town of Cripple
Creek owned by the Gold Issue Mining & Milling Company,
an Arizona corporation. Gold Issue Min. & Milling Co. v.
Pennsylvania Fire Ins. Co. of Phila., 267 Mo. 524, 537, 184
S. W. 999, 1001 (1916). Less than a year later, lightning
struck and a fire destroyed the insured facility. Ibid. When
Gold Issue Mining sought to collect on its policy, Pennsyl-
vania 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 first observed
that Missouri law required any out-of-state insurance com-
pany “desiring to transact any business” in the State to file
paperwork agreeing to (1) appoint a state official to serve as
the company’s agent for service of process, and (2) accept
service on that official 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 Mis-
souri “pursuant to the laws thereof.” Id., at 545, 184 S. W.,
at 1003. And Gold Issue Mining had served process on the
Cite as: 600 U. S. ____ (2023) 9
Opinion of the Court
appropriate state official, 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 Su-
preme 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, 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 fictitious cor-
porate 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, re-
gardless of the place, state or nation where the cause of ac-
tion arose.” Id., at 576, 184 S. W., at 1013.
Dissatisfied 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,
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”
10 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
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 company’s objections had been resolved “at length in the
judgment 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
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. Phila-
delphia & 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 reaf-
firmed its holding as often as the issue arose. See, e.g., Lou-
isville & 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 Furni-
ture 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
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-
fice” 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
privileges as a domestic entity and shall be subject to the
Cite as: 600 U. S. ____ (2023) 11
Opinion of the Court
same liabilities, restrictions, duties and penalties . . . im-
posed on domestic entities.” §402(d). Among other things,
Pennsylvania law is explicit that “qualification as a foreign
corporation” 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
“duly authorized officer,” the company completed an “Appli-
cation for Certificate of Authority” from the Commonwealth
“[i]n compliance with” state law. App. 1–2. As part of that
process, the company named a “Commercial Registered Of-
fice Provider” in Philadelphia County, agreeing that this
was where it “shall be deemed . . . located.” Ibid. The Sec-
retary of the Commonwealth approved the application, con-
ferring on Norfolk Southern both the benefits and burdens
shared by domestic corporations—including amenability to
suit in state court on any claim. Id., at 1. Since 1998, Nor-
folk Southern has regularly updated its information on file
with the Secretary. In 2009, for example, the company ad-
vised that it had changed its Registered Office Provider and
would now be deemed located in Dauphin County. Id., at 6;
see 15 Pa. Cons. Stat. §4144(b) (1988). All told, then, Nor-
folk Southern has agreed to be found in Pennsylvania and
answer any suit there for more than 20 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 office there to receive service of pro-
cess, and that in doing so it understood it would be amena-
ble to suit on any claim. Tr. of Oral Arg. 62; post, at 2
(ALITO, J., concurring in part and concurring in judgment);
12 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
post, at 2–3 (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
speculate whether any other statutory scheme and set of
facts would suffice to establish consent to suit. It is enough
to acknowledge that the state law and facts before us fall
squarely within Pennsylvania Fire’s rule. See post, at 2–4
(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, interven-
ing decisions from this Court had “implicitly overruled”
Pennsylvania Fire. See 266 A. 3d, at 559, 567. But in fol-
lowing 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 Pennsyl-
vania Fire does here, a lower court “should follow the case
which directly controls, leaving to this Court the preroga-
tive of overruling its own decisions.” Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U. S. 477, 484
(1989). This is true even if the lower court thinks the prec-
edent is in tension with “some other line of decisions.”
Ibid. 5
——————
5 The dissent stresses that Pennsylvania’s statute does not use the
word “consent” in describing the jurisdictional consequences of registra-
tion. When the dissent finally comes around to addressing Pennsylvania
Fire at the end of its opinion, it fleetingly seeks to distinguish the deci-
sion along the same lines—stressing that words like “agent” and “juris-
diction” do not appear “in Norfolk Southern’s registration paperwork.”
Post, at 5, 17, 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.
Cite as: 600 U. S. ____ (2023) 13
Opinion of the Court
IV
Now before us, Norfolk Southern candidly asks us to do
what the Pennsylvania Supreme Court could not—overrule
Pennsylvania Fire. Brief for Respondent 36–38. To smooth
the way, Norfolk Southern suggests that this Court’s deci-
sion 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 Penn-
sylvania Fire’s foundations. Brief for Respondent 34–36.
We disagree. The two precedents sit comfortably side by
side. See post, at 4 (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, “specific 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 ___–___ (slip op.,
at 5–6). Second, “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 ___ (slip op., at 5). After International
Shoe, Norfolk Southern insists, no other bases for personal
jurisdiction over a corporate defendant are permissible.
Brief for Respondent 13–15; see post, at 2–4 (BARRETT, J.,
dissenting).
But if this account might seem a plausible summary of
some of our International Shoe jurisprudence, it oversimpli-
fies matters. Here is what really happened in International
——————
Post, at 4. And neither Pennsylvania Fire, nor our later decisions apply-
ing it, nor our precedents approving other forms of consent to personal
jurisdiction have ever imposed some sort of “magic words” requirement.
See infra, at 22–23; Pennsylvania Fire, 243 U. S., at 95; Neirbo Co., 308
U. S., at 175.
14 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
Shoe. The State of Washington sued a corporate defendant
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 company com-
ported with due process. In doing so, the Court reasoned
that the Fourteenth Amendment “permit[s]” suits 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 substan-
tial justice’ ”—terms the Court borrowed from Justice
Holmes, the author of Pennsylvania Fire. International
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
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 recognized,
too, that “express or implied consent” can continue to
Cite as: 600 U. S. ____ (2023) 15
Opinion of the Court
ground personal jurisdiction—and consent may be mani-
fested in various ways by word or deed. See, e.g., Insurance
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 4 (opinion of ALITO, J.). 6
That Norfolk Southern overreads International Shoe
finds confirmation in that decision’s emphasis on “ ‘fair play
and substantial justice.’ ” 326 U. S., at 316. Sometimes, In-
ternational Shoe said, the nature of a company’s in-state ac-
tivities will support jurisdiction over a nonconsenting cor-
poration 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
company’s] activities” in the forum State may be appropri-
ate. Id., at 318. These passages may have pointed the way
to what (much) later cases would label “specific jurisdiction”
over claims related to in-forum activities and “general ju-
risdiction” 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
endorsed a flexible approach focused on “the fair and or-
derly 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 flexible
standard as expanding—not contracting—state court juris-
diction. 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
——————
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
Fire. See supra, at 9–10; Perkins v. Benguet Consol. Mining Co., 342
U. S. 437, 443–444 (1952).
16 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
v. Heitner, 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 individuals physically served in a State are subject to
suit there for claims of any kind. 495 U. S., at 616 (plurality
opinion). This Court rejected that submission. Instead, as
Justice Scalia explained, International Shoe simply pro-
vided 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’ ” In-
ternational Shoe “ ‘are overruled.’ ” Brief for Respondent 35
——————
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 9–10, 15, 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 Pennsyl-
vania 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 conflicts with the State’s claim to be “ ‘busi-
ness-friendly’ ”). But the meaning of the Due Process Clause is not meas-
ured by the latest popularity poll, nor does it come with some desuetude
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. ____ (2023) 17
Opinion of the Court
(quoting Shaffer, 433 U. S., at 212, n. 39); post, at 15 (opin-
ion of BARRETT, J.). True as that statement may be, how-
ever, 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 recognized
by the former. This Court has previously cautioned liti-
gants and lower courts against (mis)reading Shaffer as sug-
gesting that International Shoe discarded every traditional
method for securing personal jurisdiction that came before.
See Burnham, 495 U. S., at 620–622 (plurality opinion); cf.
Daimler, 571 U. S., at 126, 132–133. We find ourselves re-
peating 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 Mr. Mallory brought his claim in 2017, Norfolk
Southern had registered to do business in Pennsylvania for
——————
8 Taking up the Shaffer baton from the company, the dissent insists
that International Shoe “ ‘cast . . . aside’ ” consent statutes in favor of a
minimum contacts analysis. Post, at 13–14. But, as we have seen, noth-
ing in International Shoe purported to address, let alone condemn, con-
sent statutes. Even the dissent ultimately acknowledges, as it must, that
“ ‘a variety of legal arrangements’ ” can signal consent to jurisdiction af-
ter International Shoe, and these arrangements can include state laws
requiring consent to suit in exchange “for access to [a State’s] markets.”
Post, at 4, 6; see also Neirbo Co., 308 U. S., at 175 (calling this form of
consent “real consent” (emphasis added)).
18 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
many years. It had established an office for receiving ser-
vice 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 Commonwealth, boasting of its presence this way:
Cite as: 600 U. S. ____ (2023) 19
Opinion of the Court
20 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
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 com-
pany even proclaimed itself a proud part of “the Pennsylva-
nia 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 firm’s
“extensive operations in Pennsylvania,” including “2,278
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 sub-
stantial justice” require a Pennsylvania court to turn aside
Mr. Mallory’s suit? See post, at 4–5 (opinion of ALITO, J.). 9
——————
9 The dissent does not dispute the company’s extensive in-state con-
tacts but replies that counsel for Mr. Mallory abandoned any reliance on
them at oral argument. Post, at 17–18, 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 Philadel-
phia.” 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
jurisdiction 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 filed 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 3–4.
Cite as: 600 U. S. ____ (2023) 21
Opinion of the Court
Perhaps sensing its arguments from fairness meet a dead
end, Norfolk Southern ultimately heads in another direc-
tion altogether. It suggests the Due Process Clause sepa-
rately prohibits one State from infringing on the sover-
eignty of another State through exorbitant claims of
personal jurisdiction. Brief for Respondent 16–19; see post,
at 6–8 (opinion of BARRETT, J.). And, in candor, the com-
pany is half right. Some of our personal jurisdiction cases
have discussed the federalism implications of one State’s
assertion of jurisdiction over the corporate residents of an-
other. 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 jurisdiction cases have never found a Due Process
Clause problem sounding in federalism when an out-of-
state defendant submits to suit in the forum State. After
all, personal jurisdiction is a personal defense that may be
waived or forfeited. See Insurance Corp. of Ireland, 456
U. S., at 704–705; see also post, at 8 (opinion of ALITO, J.);
post, at 1–2 (opinion of JACKSON, J.).
That leaves Norfolk Southern one final stand. It argues
that it has not really submitted to proceedings in Pennsyl-
vania. Brief for Respondent 11–13; see post, at 5–6, 8 (opin-
ion of BARRETT, J.). The company does not dispute that it
has filed paperwork with Pennsylvania seeking the right to
do business there. It does not dispute that it has estab-
lished an office in the Commonwealth to receive service of
process on any claim. It does not dispute that it appreciated
the jurisdictional consequences attending these actions and
proceeded anyway, presumably because it thought the ben-
efits outweighed the costs. But, in the name of the Due Pro-
cess Clause, Norfolk Southern insists we should dismiss all
22 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
that as a raft of meaningless formalities. 10
Taken seriously, this argument would have us undo not
just Pennsylvania Fire but a legion of precedents that at-
tach jurisdictional consequences to what some might dis-
miss 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
file a piece of paper there (a certificate of incorporation).
The firm is amenable to suit even if all of its operations are
located elsewhere and even if its certificate only sits collect-
ing dust on an office 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 flying from New
Jersey to California, the jurisdictional consequences are im-
mediate and serious. See Burnham, 495 U. S., at 619 (plu-
rality opinion).
Consider, too, just a few other examples. A defendant
who appears “specially” to contest jurisdiction preserves his
defense, but one who forgets can lose his. See York v. Texas,
137 U. S. 15, 19–21 (1890). Failing to comply with certain
——————
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 5–6. But the closest the dissent comes to
identifying authority for the notion that laws like these are impermissi-
ble are two cases that did not involve personal jurisdiction or purport to
interpret the Due Process Clause. Post, at 8 (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 ap-
proved 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 per-
sonal jurisdiction consistent with due process, and these arrangements
can include requiring at least some companies to consent to suit in ex-
change “for access to [a State’s] markets.” Post, at 4, 6.
Cite as: 600 U. S. ____ (2023) 23
Opinion of the Court
pre-trial court orders, signing a contract with a forum se-
lection clause, accepting an in-state benefit 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 (col-
lecting cases); see also post, at 2 (opinion of JACKSON, J.).
The truth is, under our precedents a variety of “actions of
the defendant” that may seem like technicalities nonethe-
less 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 South-
ern’s argument seriously would require just that. But, tell-
ingly, the company does not follow where its argument
leads or even acknowledge its implications. Instead, Nor-
folk Southern asks us to pluck out and overrule just one
longstanding precedent that it happens to dislike. We de-
cline the invitation. Post, at 4 (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
very old question indeed—one this Court resolved more
——————
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 10–11; post, at 2 (opinion
of ALITO, J.). Pennsylvania Fire therefore controls this case. Supra, at
11–12; post, at 2–4 (opinion of ALITO, J.). Pennsylvania Fire’s rule for
consent-based jurisdiction has not been overruled. Supra, at 13–14; post,
at 4 (opinion of ALITO, J.). International Shoe governs where a defendant
has not consented to exercise of jurisdiction. Supra, at 14–15; post, at 4
(opinion of ALITO, J.). Exercising jurisdiction here is hardly unfair. Su-
pra, at 17–20; post, at 4–5 (opinion of ALITO, J.). The federalism concerns
in our due process cases have applied only when a defendant has not
consented. Supra, at 21; post, at 7–8 (opinion of ALITO, J.). Nor will this
Court now overrule Pennsylvania Fire. Supra, at 21–23; post, at 4 (opin-
ion of ALITO, J.).
24 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of the Court
than a century ago in Pennsylvania Fire. Because that de-
cision remains the law, the judgment of the Supreme Court
of Pennsylvania is vacated, and the case is remanded.
It is so ordered.
Cite as: 600 U. S. ____ (2023) 1
JACKSON, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1168
_________________
ROBERT MALLORY, PETITIONER v. NORFOLK
SOUTHERN RAILWAY CO.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA, EASTERN DISTRICT
[June 27, 2023]
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 & Milling 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 confirmed a sim-
ple truth: The due process “requirement of personal juris-
diction” is an individual, waivable right. Id., at 703. The
requirement exists, we said, to ensure that the forum State
has sufficient contacts with a defendant, such that “ ‘the
maintenance of the suit [does] not offend “traditional no-
tions of fair play and substantial justice.” ’ ” Ibid. (quoting
International Shoe Co. v. Washington, 326 U. S. 310, 319
(1945)). We noted further that the interstate federalism
concerns informing that right are “ultimately a function of
the individual liberty interest” that this due process right
preserves. 456 U. S., at 703, n. 10. Because the personal-ju-
risdiction right belongs to the defendant, however, we ex-
plained 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
2 MALLORY v. NORFOLK SOUTHERN R. CO.
JACKSON, J., concurring
if our personal-jurisdiction cases would normally preclude
the State from subjecting a defendant to its authority under
the circumstances 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 Ireland also clari-
fied. A defendant can waive its rights by explicitly or im-
plicitly consenting to litigate future disputes in a particular
State’s courts. Id., at 703–704. A defendant might also fail
to follow specific procedural rules, and end up waiving the
right to object to personal jurisdiction as a consequence.
Id., at 705–706. Or a defendant can voluntarily invoke cer-
tain benefits from a State that are conditioned on submit-
ting 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 per-
sonal-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 benefits. Ante, at 10–11; see also post, at 2
(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
“qualification as a foreign corporation under the laws of
th[e] Commonwealth” to the “exercise [of] general personal
jurisdiction”); 266 A. 3d 542, 569 (Pa. 2021) (acknowledging
Cite as: 600 U. S. ____ (2023) 3
JACKSON, J., concurring
that “foreign corporations are given reasonable notice” of
the jurisdictional 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 Common-
wealth. 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 (in-
ternal quotation marks omitted). Norfolk Southern appar-
ently deemed registration worthwhile and opted in.
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 juris-
diction over Norfolk Southern absent any waiver, see post,
at 3–4 (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). Moreo-
ver, 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
precedents preclude Pennsylvania from subjecting corpora-
tions to suit within its borders—despite their waiver of the
protections those precedents entail—puts the personal-ju-
risdiction requirement on a pedestal. But there is nothing
4 MALLORY v. NORFOLK SOUTHERN R. CO.
JACKSON, J., concurring
“unique about the requirement of personal jurisdiction
[that] prevents it from being . . . waived like other [individ-
ual] 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, wai-
vable right, and I agree with the Court that Norfolk South-
ern waived that right by choosing to register as a foreign
corporation under the circumstances presented in this case.
Therefore, I perceive no due process problem with the reg-
istration statute at issue here.
Cite as: 600 U. S. ____ (2023) 1
ALITO, J.,of
Opinion concurring
ALITO, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1168
_________________
ROBERT MALLORY, PETITIONER v. NORFOLK
SOUTHERN RAILWAY CO.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA, EASTERN DISTRICT
[June 27, 2023]
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
conditions the right to do business in that State on the reg-
istrant’s submission to personal jurisdiction in any suits
that are brought there. I agree with the Court that the an-
swer 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 corpo-
ration’s right to “ ‘fair play and substantial justice.’ ” Inter-
national Shoe Co. v. Washington, 326 U. S. 310, 316 (1945).
I am not convinced, however, that the Constitution per-
mits a State to impose such a submission-to-jurisdiction re-
quirement. A State’s assertion of jurisdiction over lawsuits
with no real connection to the State may violate fundamen-
tal principles that are protected by one or more constitu-
tional provisions or by the very structure of the federal sys-
tem that the Constitution created. At this point in the
development of our constitutional case law, the most appro-
priate home for these principles is the so-called dormant
Commerce Clause. Norfolk Southern appears to have as-
2 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of ALITO, J.
serted a Commerce Clause claim below, but the Pennsylva-
nia 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 vacate the Pennsylvania Supreme Court’s judg-
ment and remand 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 Vir-
ginia, had long operated rail lines and conducted related
business in Pennsylvania. Consistent with Pennsylvania
law, the company 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 pro-
vided that “qualification as a foreign corporation” was a
“sufficient basis” for Pennsylvania courts “to exercise gen-
eral personal jurisdiction” 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 knowledge” of state law when it registered. Commer-
cial Mut. Accident Co. v. Davis, 213 U. S. 245, 254 (1909).
As a result, we may also presume that by registering, it con-
sented 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 filing [registration paperwork] that
it was subject to [Pennsylvania’s general jurisdiction] law”).
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 Pennsyl-
vania Fire Ins. Co. of Philadelphia v. Gold Issue Mining &
Cite as: 600 U. S. ____ (2023) 3
Opinion of ALITO, J.
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 ex-
ecute a power of attorney consenting to service of process
on the state insurance superintendent in exchange for li-
censure. Ibid. The Missouri Supreme Court had previously
construed such powers of attorney as consent to jurisdiction
in Missouri for all claims, including those arising from
transactions outside the State. Gold Issue Mining & Mill-
ing Co. v. Pennsylvania Fire Ins. Co. of Philadelphia, 267
Mo. 524, 549–550, 184 S. W. 999, 1003–1005 (1916) (citing
State ex rel. Pacific Mut. Life Ins. Co. v. Grimm, 239 Mo.
135, 159–171, 143 S. W. 483, 490–494 (1911)). Because the
insurance company had executed the power of attorney to
obtain its license, the court held that Missouri had jurisdic-
tion over the company in that suit. 267 Mo., at 610, 184
S. W., at 1024. We affirmed in a brief opinion, holding that
the construction of Missouri’s statute and its application to
the Pennsylvania insurance company under the circum-
stances of the case did not violate due process. Pennsylva-
nia Fire, 243 U. S., at 95.
The parallels between Pennsylvania Fire and the case be-
fore us are undeniable. In both, a large company incorpo-
rated in one State was actively engaged in business in an-
other State. In connection with that business, both
companies took steps that, under the express terms or pre-
vious authoritative construction of state law, were under-
stood 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 company, alleging claims unrelated to the com-
pany’s forum-state conduct. And in both, the out-of-state
company objected, arguing that holding it to the terms of its
4 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of ALITO, J.
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 15–16 (BARRETT, J., dis-
senting). Norfolk Southern cites the International Shoe line
of cases, but those cases involve constitutional limits on ju-
risdiction over non-consenting corporations. See Interna-
tional Shoe, 326 U. S., at 317; Goodyear Dunlop Tires Oper-
ations, 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 juris-
diction. 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. Shaf-
fer 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
its application here. Ramos v. Louisiana, 590 U. S. ___, ___
(2020) (KAVANAUGH, J., concurring in part) (slip op., at 7).
Requiring Norfolk Southern to defend against Mallory’s
suit in Pennsylvania, 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.
Cite as: 600 U. S. ____ (2023) 5
Opinion of ALITO, J.
The company has extensive operations in Pennsylvania,
266 A. 3d, at 562–563; see also ante, at 17–20; has availed
itself of the Pennsylvania courts on countless occasions,
Brief for Academy of Rail Labor Attorneys as Amicus Cu-
riae 4–5 (collecting cases); and had clear notice that Penn-
sylvania considered its registration as consent to general
jurisdiction, 15 Pa. Cons. Stat. §411(a); 42 Pa. Cons. Stat.
§5301(a)(2)(i). Norfolk Southern’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-
lory’s decision to sue in Philadelphia as anything other than
the selection of a venue that is reputed to be especially fa-
vorable to tort plaintiffs. 1 But we have never held that the
Due Process Clause protects against forum shopping. Per-
haps for that understandable reason, no party has sug-
gested that we go so far.
For these reasons, I agree that Pennsylvania Fire controls
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
principle, an “obviou[s]” and “necessary result” of our con-
——————
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).
6 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of ALITO, J.
stitutional order, is not confined to any one clause or sec-
tion, but is expressed in the very nature of the federal sys-
tem that the Constitution created and in numerous provi-
sions 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, at 6–8, 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 origi-
nally been intended to reside. This may be true, for exam-
ple, with respect to the protection of substantive rights that
might otherwise be guaranteed by the Fourteenth Amend-
ment’s Privileges and Immunities Clause. See McDonald
v. Chicago, 561 U. S. 742, 754–759 (2010) (plurality opin-
ion); 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 first decision holding that the Fourteenth Amend-
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.
——————
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. ____ (2023) 7
Opinion of ALITO, J.
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 doc-
trine, but reflected “well-established principles of public
law” that “ha[d] been frequently expressed . . . in opinions
of eminent judges, and . . . carried into adjudications in nu-
merous 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.).
Our post-International Shoe decisions have continued to
recognize that constitutional restrictions on state court ju-
risdiction “are more than a guarantee of immunity from in-
convenient or distant litigation,” but reflect “territorial lim-
itations” 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 express or implicit in both the original scheme of
the Constitution and the Fourteenth Amendment”);
J. McIntyre Machinery, 564 U. S., at 884 (plurality opinion)
(if a “State were to assert jurisdiction in an inappropriate
case, it 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 deci-
sive” in the due process analysis. Bristol-Myers Squibb Co.
8 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of ALITO, J.
v. Superior Court of Cal., San Francisco Cty., 582 U. S. 255,
263 (2017).
Despite these many references to federalism in due pro-
cess decisions, there is a significant obstacle to addressing
those concerns through the Fourteenth Amendment here:
we have never held that a State’s assertion of jurisdiction
unconstitutionally 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 deci-
sion could be justified. The Due Process Clause confers a
right on “person[s],” Amdt. 14, §1, not States. If a person
voluntarily waives that right, that choice should be hon-
ored. See Insurance Corp. of Ireland, 456 U. S., at 703;
ante, at 2–3 (JACKSON, J., concurring).
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 Spirits Retailers Assn. v. Thomas, 588 U. S. ___,
___–___ (2019) (slip op., at 6–7); see, e.g., Cooley v. Board of
——————
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 Dakota v. Wayfair, Inc., 585 U. S. ___, ___–___ (2018) (slip op., at
17–18); see also Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S.
761, 769–770 (1945).
Cite as: 600 U. S. ____ (2023) 9
Opinion of ALITO, J.
Wardens of Port of Philadelphia ex rel. Soc. for Relief of Dis-
tressed Pilots, 12 How. 299, 318–319 (1852); Willson v.
Black Bird Creek Marsh Co., 2 Pet. 245, 252 (1829).
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 ___ (slip op., at 7), and vindicates a fundamen-
tal aim of the Constitution: fostering the creation of a na-
tional economy and avoiding the every-State-for-itself prac-
tices 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 fill that role,” but “at this point in the
Court’s history, no provision other than the Commerce
Clause could easily do the job.” Tennessee Wine, 588 U. S.,
at ___ (slip op., at 8). 4
——————
4 In the past, the Court recognized 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) (apply-
ing Import-Export Clause to invalidate state law taxing gold and silver
shipments between States); Toomer v. Witsell, 334 U. S. 385, 396, and
n. 26 (1948) (observing that the Privileges and Immunities Clause guar-
antees 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
Woodruff 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 in-
applicable 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 limitations on commerce” is to be preserved. Healy, 491 U. S.,
at 336.
10 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of ALITO, J.
In its negative aspects, the Commerce Clause serves to
“mediate [the States’] competing claims of sovereign au-
thority” to enact regulations that affect commerce among
the States. National Pork Producers Council v. Ross, 598
U. S. ___, ___ (2023) (slip op., at 14). The doctrine recog-
nizes that “one State’s power to impose burdens on . . . in-
terstate 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) (cit-
ing 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 an-
other State is based on the dormant Commerce Clause, it
stands to reason that this doctrine 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
——————
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 Pacific Co., 278 S. W. 2d 749, 753 (Mo.
1955); White v. Southern Pacific Co., 386 S. W. 2d 6, 7–9 (Mo. 1965).
Cite as: 600 U. S. ____ (2023) 11
Opinion of ALITO, J.
was “in no way connected with Minnesota.” Id., at 314. Ju-
risdiction 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
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 Minne-
sota’s condition “impos[ed] upon interstate commerce a se-
rious and unreasonable burden, which renders the statute
obnoxious to the [C]ommerce [C]lause.” Ibid. “By requiring
from interstate carriers general submission to suit,” Minne-
sota’s statute “unreasonably obstruct[ed], and unduly bur-
den[ed], interstate commerce.” Id., at 317. 6
Although we have since refined our Commerce Clause
framework, the structural constitutional principles under-
lying these decisions are unchanged, and the Clause re-
mains 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
——————
6 Because we resolved the case under the Commerce Clause, we de-
clined to consider the railroad’s Fourteenth Amendment challenges. Da-
vis v. Farmers Co-operative Equity Co., 262 U. S. 312, 318 (1923).
12 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of ALITO, J.
commerce or when it imposes “undue burdens” on inter-
state commerce. South Dakota v. Wayfair, Inc., 585 U. S.
___, ___ (2018) (slip op., at 7). Discriminatory state laws
are subject to “ ‘a virtually 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 ‘ei-
ther on its face or in practical effect,’ ” the law’s proponent
must “demonstrate both that the statute ‘serves a legiti-
mate local purpose,’ and that this purpose could not be
served as well by available nondiscriminatory means.”
Maine v. Taylor, 477 U. S. 131, 138 (1986). Justification of
a discriminatory law faces a “high” bar to overcome the pre-
sumption of invalidity. New Energy Co. of Ind. v. Limbach,
486 U. S. 269, 278 (1988). Laws that “ ‘even-handedly’ ” reg-
ulate to advance “ ‘a legitimate local public interest’ ” are
subject to a looser standard. Wayfair, 585 U. S., at ___ (slip
op., at 7). These laws will be upheld “ ‘unless the burden
imposed on [interstate] commerce is clearly excessive in re-
lation to the putative local benefits.’ ” Ibid. In these cir-
cumstances, “ ‘the question becomes one of degree,’ ” and
“ ‘the extent of the burden that will be tolerated will . . . de-
pend 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 im-
poses a “significant burden” on interstate commerce by
——————
7 See, e.g., J. Preis, The Dormant Commerce Clause as a Limit on Per-
sonal 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 benefit 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
Cite as: 600 U. S. ____ (2023) 13
Opinion of ALITO, J.
“[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., at315–317 (burden in these circumstances is “serious and un-
reasonable,” “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) (burden is “serious”); Atchison, T. & S. F. R. Co.
v. Wells, 265 U. S. 101, 103 (1924) (jurisdiction “interfered
unreasonably 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 in-
tolerable unpredictability into doing business across state
borders. Large companies may be able to manage the
patchwork 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 devastating. 8 Large companies may resort to creative
corporate 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
——————
companies generally face no reciprocal burden for expanding operations
into another State.
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 five employees).
14 MALLORY v. NORFOLK SOUTHERN R. CO.
Opinion of ALITO, J.
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 scrutiny under this Court’s framework, the law
must advance a “ ‘legitimate local public interest’ ” and the
burdens must not be “ ‘clearly excessive in relation to the
putative local benefits.’ ” Wayfair, 585 U. S., at ___ (slip op.,
at 7). But I am hard-pressed to identify any legitimate local
interest that is advanced by requiring an out-of-state com-
pany to defend a suit brought by an out-of-state plaintiff on
claims wholly unconnected to the forum State. A State cer-
tainly has a legitimate interest in regulating activities con-
ducted 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. Pawloski, 274 U. S. 352, 356 (1927). A State
also may have an 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 vindi-
cating the rights of non-residents harmed by out-of-state
actors through conduct outside the State. See, e.g., Edgar
v. MITE Corp., 457 U. S. 624, 644 (1982). With no legiti-
mate local interest served, “there is nothing to be weighed
. . . to sustain the law.” Ibid. And even if some legitimate
local interest could be identified, I am skeptical that any
local benefits of the State’s assertion of jurisdiction in these
circumstances could overcome the serious burdens on inter-
state 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
Cite as: 600 U. S. ____ (2023) 15
Opinion of ALITO, J.
petitioner Mallory and no Commerce Clause challenge is
before 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.
Cite as: 600 U. S. ____ (2023) 1
BARRETT, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1168
_________________
ROBERT MALLORY, PETITIONER v. NORFOLK
SOUTHERN RAILWAY CO.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA, EASTERN DISTRICT
[June 27, 2023]
JUSTICE BARRETT, with whom THE CHIEF JUSTICE,
JUSTICE 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 flies in the face of our precedent. See Daimler
AG v. Bauman, 571 U. S. 117, 139–140 (2014).
The Court finds a way around this settled rule. All a
State must do is compel a corporation to register to conduct
business there (as every State does) and enact a law making
registration sufficient 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.
2 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
I
A
Personal jurisdiction is the authority of a court to issue a
judgment that binds a defendant. If a defendant submits
to a court’s authority, the court automatically acquires per-
sonal jurisdiction. Insurance Corp. of Ireland v. Compagnie
des Bauxites de Guinee, 456 U. S. 694, 703 (1982). But if a
defendant contests the court’s authority, the court must de-
termine whether it can nevertheless assert coercive power
over the defendant. That calculus turns first on the statute
or rule defining 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 au-
thority of a sovereign to which it has an insufficient tie. In-
ternational Shoe, 326 U. S., at 316. The Clause has the
companion role of ensuring that state courts “do not reach
out beyond 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 cat-
egories: specific and general. Both are subject to the de-
mands of the Due Process Clause. Specific jurisdiction, as
its name suggests, allows a state court to adjudicate specific
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) (slip op., at 6) (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 ___ (slip op., at 5) (quoting
Cite as: 600 U. S. ____ (2023) 3
BARRETT, J., dissenting
Goodyear Dunlop Tires Operations, S. A. v. Brown, 564
U. S. 915, 919 (2011)). This sweeping authority exists only
when the defendant’s connection to the State is tight—so
tight, in fact, that the defendant is “ ‘at home’ ” there. Ford
Motor, 592 U. S., at ___ (slip op., at 5). An individual is
typically “at home” in her 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. Absent an exceptional circum-
stance, general jurisdiction is cabined 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
corporations 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 ad-
judicate any and all claims against corporations doing busi-
ness there.
As the Pennsylvania Supreme Court recognized, this
statute “clearly, palpably, and plainly violates the Consti-
tution.” 266 A. 3d 542, 565–566 (2021). Look no further
than BNSF R. Co. v. Tyrrell, a case with remarkably simi-
lar facts—and one that the Court conspicuously ignores.
581 U. S. 402 (2017). There, we assessed whether Mon-
tana’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 employees in the forum, but it was
neither incorporated nor headquartered there. Id., at 406–
4 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
407. We rejected Montana’s assertion of general jurisdic-
tion over BNSF because “in-state business . . . does not suf-
fice 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 ex-
plained, could not have made that any clearer. BNSF, 581
U. S., at 414.
The same rule applies here. The Pennsylvania statute
announces that registering to do business in the Common-
wealth “shall constitute a sufficient basis” for general juris-
diction. §5301(a). But as our precedent makes crystal
clear, simply doing business is insufficient. 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 ___
(slip op., at 5); Daimler, 571 U. S., at 139; Goodyear, 564
U. S., at 924. Adding the antecedent step of registration
does not change that conclusion. If it did, “every corpora-
tion 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 Mar-
tin Corp., 814 F. 3d 619, 640 (CA2 2016).
II
A
The Court short-circuits this precedent by characteriz-
ing this case as one about consent rather than contacts-
based jurisdiction. Consent is an established basis for per-
sonal jurisdiction, 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 ap-
pearance. Insurance Corp. of Ireland, 456 U. S., at 703–
704. Today, the Court adds corporate registration to the
list.
Cite as: 600 U. S. ____ (2023) 5
BARRETT, J., dissenting
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 “qualifi-
cation as a foreign corporation” in the Commonwealth is a
sufficient hook for general jurisdiction. The next subsection
(invoked by neither Mallory nor the Court) permits the ex-
ercise 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
Southern’s registration paperwork—which is instead
wholly silent on the matter. App. 1–7. What Mallory calls
“consent” is what the Pennsylvania Supreme Court called
“compelled submission to general jurisdiction by legislative
command.” 266 A. 3d, at 569. Corporate registration trig-
gers a statutory repercussion, but that is not “consent” in a
conventional 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 mar-
ket, a corporation must allow the Commonwealth’s courts
to adjudicate any and all claims against it, even those (like
Mallory’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 reg-
istering, 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 reg-
ister with knowledge (constructive or actual) of the jurisdic-
tional consequences. Ante, at 10–11, 21 (“proceed[ing] any-
way” in light of “the jurisdictional consequences attending
these actions”); ante, at 2 (ALITO, J., concurring in part and
concurring in judgment) (basing “consent” on “presume[d]”
knowledge of state law); ante, at 3 (JACKSON, J., concurring)
(“register[ing] and do[ing] business in Pennsylvania despite
the jurisdictional consequences”). But on that logic, any
6 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
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 defies our precedent, which, again, holds that
“in-state business . . . does not suffice to permit the asser-
tion of general jurisdiction.” BNSF, 581 U. S., at 414. Yet
this hypothetical law, like the Pennsylvania statute, gives
notice that general jurisdiction is the price of doing busi-
ness. And its “notice” is no less “clear” than Pennsylvania’s.
Ante, at 5 (opinion of ALITO, J.). So on the Court’s reason-
ing, corporations that choose to do business in the State im-
pliedly 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 Ami-
cus Curiae 4. Yet the Court takes this route without so
much as acknowledging 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). 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 personal jurisdiction “are more than a
guarantee of immunity from inconvenient or distant litiga-
tion. They are a consequence of territorial limitations on
Cite as: 600 U. S. ____ (2023) 7
BARRETT, J., dissenting
the power of the respective States.” 357 U. S., at 250–251.
In World-Wide Volkswagen, we explained that “[e]ven if the
defendant would suffer minimal or no inconvenience from
being forced to litigate before the tribunals of another State
. . . the Due Process Clause, acting as an instrument of in-
terstate 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 ___ (slip op., at 6); Asahi Metal
Industry Co. v. Superior Court of Cal., Solano Cty., 480
U. S. 102, 113, 115 (1987); International Shoe, 326 U. S., at
317. A defendant’s ability to waive its objection to personal
jurisdiction reflects that the Clause protects, first and fore-
most, 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 “ex-
orbitant” and “grasping” than attempts we have previously
rejected. 1 Daimler, 571 U. S., at 121–122, 138–139. Condi-
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 oth-
ers.” Lafayette, 18 How., at 407; St. Clair v. Cox, 106 U. S.
350, 356 (1882). Permitting Pennsylvania to impose a blan-
ket claim of authority over controversies with no connection
——————
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 2–3; Tr. of Oral Arg. 39. Pennsylvania, by contrast, “has no
legitimate interest in a controversy with no connection to the Common-
wealth that was filed by a non-resident against a foreign corporation.”
266 A. 3d, at 567.
8 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
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 ___–___ (slip op., at 6–7); Daimler, 571 U. S.,
at 141–142.
The plurality’s response is to fall back, yet again, on “con-
sent.” Ante, at 21, 23, n. 11. In its view, because a defend-
ant can waive its personal jurisdiction right, a State can
never overreach in demanding its relinquishment. Ibid.;
see also ante, at 8 (opinion of ALITO, J.); ante, at 1–3 (opin-
ion of JACKSON, J.). That is not how we treat rights with
structural components. The right to remove a case to fed-
eral 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. Rossiter ed.
1961) (A. Hamilton). At the same time, however, it serves
federal interests by ensuring that federal courts can vindi-
cate 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 relinquish
this (waivable) right to removal as a condition of doing busi-
ness. 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 re-
quire a foreign corporation “to forfeit [its] rights at all times
and on all occasions, whenever the case might be pre-
sented”). The same logic applies here. Pennsylvania’s
power grab infringes on more than just the rights of defend-
ants—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
Cite as: 600 U. S. ____ (2023) 9
BARRETT, J., dissenting
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
judgment); id., at 640 (Stevens, J., concurring in judgment).
The plurality claims that registration jurisdiction for a cor-
poration 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 juris-
diction. Nonetheless, we reasoned that tag jurisdiction is
“both firmly approved by tradition and still favored,” mak-
ing it “one of the continuing traditions of our legal system
that define[s] the due process standard of ‘traditional no-
tions of fair play and substantial justice.’ ” Id., at 619 (opin-
ion of Scalia, J.) (quoting International Shoe, 326 U. S., at
316); see also 495 U. S., at 635–637 (Brennan, J., concur-
ring in judgment) (a jurisdictional rule that reflects “our
common understanding now, fortified by a century of judi-
cial 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.
General-jurisdiction-by-registration flunks both of these
prongs: It is neither “firmly approved by tradition” nor “still
favored.” 495 U. S., at 622 (opinion of Scalia, J.). Thus, the
plurality’s analogy to tag jurisdiction is superficial at best.
Start with the second prong. In Burnham, “[w]e [did] not
know of a single state . . . that [had] abandoned in-state ser-
vice as a basis of jurisdiction.” Id., at 615. Here, as Mallory
concedes, Pennsylvania is the only State with a statute
10 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
treating registration as sufficient 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
outdated legal fictions . . . would be absurd and, as ex-
plained above, inconsistent with contemporary understand-
ings 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 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
practice). 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 reflec-
tive of “our common understanding now,” id., at 635–637
(Brennan, J., concurring in judgment) (emphasis deleted).
Quite the opposite: The plurality denigrates “the spirit of
our age”—reflected by the vast majority of States—and ap-
peals to its own notions of fairness. Ante, at 17–20.
The past is as fatal to the plurality’s theory as the pre-
sent. Burnham’s tradition prong asks whether a method
for securing jurisdiction was “shared by American courts at
the crucial time”—“1868, when the Fourteenth Amendment
——————
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 reg-
istration justified general jurisdiction. Applying the consent theory, 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. ____ (2023) 11
BARRETT, J., dissenting
was adopted.” 495 U. S., at 611 (opinion of Scalia, J.). But
the plurality cannot identify a single case from that period
supporting its theory. 3 In fact, the evidence runs in the op-
posite direction. Statutes that required the appointment of
a registered agent for service of process were far more mod-
est than Pennsylvania’s. 4 And even when a statute was
written more broadly, state courts generally understood it
to implicitly limit jurisdiction to suits with a connection to
the forum. The state reporters are replete with examples
of judicial decisions 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.,
——————
3 The plurality argues that the uniform practice of state courts at the
time of ratification is inapposite because no state court held that general-
jurisdiction-by-registration violates the Fourteenth Amendment. Ante,
at 7, n. 4. This approach reflects a misunderstanding of Burnham. The
inquiry is not whether courts rejected a process for obtaining jurisdiction
as unconstitutional. It is whether courts actually used—and continue 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 immemorially
the actual law of the land”). Registration jurisdiction falls short on both
fronts.
4 Many States expressly limited their statutes to disputes with a con-
nection to the State. See, e.g., Ind. Code §25–2 (1852) (foreign corpora-
tions 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 in-
curred 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 nonresident “when the cause of action has arisen, or the sub-
ject of the action shall be situate[d] in this state”), App. to Brief for Peti-
tioner 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.
12 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
96 Mass. 336, 340–343 (1867); see also, e.g., Camden Roll-
ing Mill v. Swede Iron Co., 32 N. J. L. 15, 18 (1866) (reject-
ing a statutory construction 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, maintained by the people of Michigan, the
arbiters of differences in which our citizens have no inter-
est”); 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 ac-
crue here”); Central R. & Banking Co. v. Carr, 76 Ala. 388,
393 (1884) (collecting cases). 5 Our cases from this era ar-
ticulate the same line. 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., at356–357 (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 cannot be held that the company
agreed that service of process . . . would alone be sufficient
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 typically did not sue de-
fendants in fora that had no rational relation to causes of
action,” Genuine Parts, 137 A. 3d, at 146, courts repeatedly
turned them away when they did.
——————
5 Mallory cannot find 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 ratified the Fourteenth Amendment.
See Smith, 96 Mass., at 340–343.
Cite as: 600 U. S. ____ (2023) 13
BARRETT, J., dissenting
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 1–2, 16. The plurality 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 fi[t] com-
fortably in a jurisdictional regime based primarily upon ‘de
facto power over the defendant’s person’ ”); International
Shoe, 326 U. S., at 316–317. The plurality’s rationale seems
to be that if a person is subject to general jurisdiction any-
where she is present, then a corporation should be subject
to general jurisdiction anywhere it does business. See ante,
at 1–2, 5–6, 9–10, 16, 22. 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 le-
gal fictions designed to secure the presence or consent of
nonresident individuals and foreign corporations. For ex-
ample, state laws required nonresident drivers to give their
“implied consent” to be sued for their in-state accidents as
a condition of using the road. Hess v. Pawloski, 274 U. S.
352, 356 (1927); World-Wide Volkswagen, 444 U. S., at 296,
n. 11. And foreign corporations, as we have discussed, were
required by statute to “consent” to the appointment of a res-
14 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
ident agent, so that the company could then be construc-
tively “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 fictional” 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 fictions 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
very point of International Shoe was to “cast . . . aside” the
legal fictions built on the old territorial approach to per-
sonal 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 fac-
tual fictions’ ”). In Burnham, we upheld tag jurisdiction be-
cause it is not one of those fictions—it is presence. By con-
trast, Pennsylvania’s registration statute is based on
deemed consent. And this kind of legally implied consent is
one of the very fictions 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) (slip
op., at 8).
C
Neither JUSTICE ALITO nor the plurality seriously con-
tests this history. Nor does either deny that Mallory’s the-
ory would gut Daimler. Instead, they insist that we already
decided this question in a pre-International Shoe precedent:
Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue
Cite as: 600 U. S. ____ (2023) 15
BARRETT, J., dissenting
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 protect-
ing 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 filed “a power
of attorney consenting that service of process upon the su-
perintendent [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
law.” Id., at 95. 6
The Court asserts that Pennsylvania Fire controls our de-
cision 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 fits that bill. Time and again,
we have reinforced that “ ‘doing business’ tests”—like those
——————
6 The plurality praises the Missouri Supreme Court’s “carefu[l]” and
“thoughtful opinion.” Ante, at 9–10. 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. Phoenix
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: Com-
pliance with its registration statute does not constitute consent to gen-
eral jurisdiction. State ex rel. Norfolk Southern R. Co. v. Dolan, 512
S. W. 3d 41, 52–53, and n. 11 (Mo. 2017).
16 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
“framed before specific 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, af-
fecting nothing that came before it. 7 Ante, at 14–15. That
is as fictional 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 (repudi-
ating quasi in rem jurisdiction). And we have repeatedly
reminded litigants not to put much stock in our pre-Inter-
national Shoe decisions. Shaffer, 433 U. S., at 212, n. 39;
see also BNSF, 581 U. S., at 412. Daimler itself reinforces
that pre-International Shoe decisions “should not attract
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 “momen-
tous”—to give just a few examples. Ford Motor, 592 U. S.,
at ___ (slip op., at 4); Bristol-Myers, 582 U. S., at 262; Daim-
ler, 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 consent
(inferred from doing business). 243 U. S., at 95–96; see also
Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165,
——————
7 While International Shoe expanded the bases for specific 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. ____ (2023) 17
BARRETT, J., dissenting
175 (1939) (basing jurisdiction on “finding an actual con-
sent” (emphasis added)). As Judge Learned Hand empha-
sized in a decision invoked by the plurality, without “ex-
press 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 equiv-
alent of . . . a corporate vote [that] had accepted service in
this specific 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 11: It named a “Commercial Registered Of-
fice Provider,” App. 1, 6, it notified Pennsylvania of a mer-
ger, id., at 3–5, and it paid $70 to update its paperwork, id.,
at 6. None of those documents use the word “agent,” noth-
ing hints at the word “jurisdiction,” and (as the Pennsylva-
nia Supreme Court explained) nothing about that registra-
tion is “voluntary.” 266 A. 3d, at 570, and n. 20. 8 Consent
in Pennsylvania 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 22.
IV
By now, it should be clear that the plurality’s primary ap-
proach to this case is to look past our personal jurisdiction
——————
8 I agree with the Court that no “magic words” are necessary to estab-
lish valid consent. Ante, at 12–13, 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
difference between the two, it is quite a stretch to treat them as one and
the same.
18 MALLORY v. NORFOLK SOUTHERN R. CO.
BARRETT, J., dissenting
precedent. Relying on a factsheet downloaded from the in-
ternet, for instance, the plurality argues that Norfolk
Southern is such a “part of ‘the Pennsylvania Community,’ ”
and does so much business there, that its “presence” in
Pennsylvania is enough to require it to stand for suits hav-
ing nothing to do with the Commonwealth. Ante, at 17–20;
see also ante, at 4–5 (opinion of ALITO, J.). 9 In Daimler,
however, we roundly rejected the plaintiff ’s request that we
“approve the exercise of general jurisdiction in every State
in which a corporation ‘engages in a substantial, continu-
ous, and systematic course of business.’ ” 571 U. S., at 138.
The established test—which the plurality barely acknowl-
edges—is whether the corporation is “at home” in the State.
“A corporation that operates in many places,” and must
therefore 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 ___ (slip op., at
1) (ALITO, J., concurring in judgment); id., at ___–___ (slip
op., at 8–9) (GORSUCH, J., joined by THOMAS, J., concurring
in judgment); BNSF, 581 U. S., at 416 (SOTOMAYOR, J., con-
curring in part and dissenting in part). And make no mis-
take: They are halfway out the door. If States take up the
Court’s invitation to manipulate registration, Daimler and
Goodyear will be obsolete, and, at least for corporations,
specific jurisdiction will be “superfluous.” 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 con-
sent and consent alone. Without consent, we don’t prevail”). Apparently
dissatisfied with this concession, the plurality finds its own facts and de-
velops its own argument. That is not how we usually do things. See
United States v. Sineneng-Smith, 590 U. S. ___, ___–___ (2020) (slip op.,
at 3–4).