Bench Memos

Court Ruling Invites Scathing Criticism?

Today’s Supreme Court ruling in Daimler AG v. Bauman has ingredients that would seem likely to trigger hostile editorials in the liberal media: The majority slams the door shut on plaintiffs who are trying to seek redress for human-rights violations that Daimler’s Argentinian subsidiary allegedly collaborated in during Argentina’s “Dirty War” from 1976 to 1983. Worse, it does so, Justice Sotomayor’s dissenting analysis charges, “on a ground that no court has considered in the history of this case, that this Court did not grant certiorari to decide, and that Daimler raised only in a footnote of its brief, and “it adopts a new rule of constitutional law that is unmoored from decades of precedent.” The end result, according to Sotomayor, is a huge victory for multinational corporations at the expense of the individuals harmed by their actions.

Surely, the author of the majority opinion should prepare for some scathing criticism in the press.

Or perhaps not.

It turns out that the author of the majority opinion is Justice Ginsburg, that all the other justices but Sotomayor join her opinion, and that what I have accurately labeled Sotomayor’s dissenting analysis comes in an opinion concurring in the judgment.

Justice Ginsburg’s opinion reads like a primer on the doctrine of personal jurisdiction. For those readers not interested in studying this basic doctrine, what might be of greater interest is Ginsburg’s manifest impatience with what she evidently regards as Sotomayor’s utter cluelessness. Among Ginsburg’s comments:

“Remarkably, Justice Sotomayor treats specific jurisdiction as though it were barely there” (i.e., barely existed) and “overlooks [a part of] the very passage … on which she relies.”  (14 n. 10.)

Sotomayor “[s]electively refer[s]” to the trial-court record in a case even though “[o]n another day” she recognizes the point she now disputes. (11 n. 8.)

Sotomayor “favors a resolution fit for this day and case only.” (21 n. 20.)

Sotomayor’s assertion that the majority has “strayed from the question on which we granted certiorari to decide an issue not argued below …. is doubly flawed” (as the issue is “fairly encompassed” within the question granted and was argued below). (18 n. 16.)

Sotomayor, I will add, fires back. On my limited review so far, I’m not in a position to assess who has the better of the argument.

What is less surprising is that the Court overturns a Ninth Circuit ruling by Judge Stephen Reinhardt, a ruling that the Ninth Circuit, over the dissent of Judge O’Scannlain and seven of his colleagues, refused to reconsider en banc.

[I’ve slightly expanded the original version of this post.]


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