Miami, Fla. (June 28, 2023) - Following up on our Client Alert from June 28 regarding Mallory, it should also be emphasized that Justice Alito was the fifth and deciding vote on Parts I and III-B of the Court's limited majority opinion reaffirming Pennsylvania Fire, but wrote his own special concurrence explaining that he would have held "general jurisdiction by registration" statutes unconstitutional on other grounds-specifically, the Dormant Commerce Clause.
For that reason, we would suggest still challenging compelled "general jurisdiction by registration" statutes if our clients agree to that approach, but including an argument under the Commerce Clause along the lines that Justice Alito articulated.
In other words, another important takeaway from Mallory is that a different five members of the Court still believe that compelled "general jurisdiction by registration" statutes, like those in Pennsylvania and Georgia, are unconstitutional-they just could not agree on the reasoning. The four dissenters (Barrett, CJ Roberts, Kagan, and Kavanaugh) would have held that these statutes are unconstitutional under the Fourteenth Amendment's Due Process Clause, while Justice Alito separately believes that they are unconstitutional under the Commerce Clause (in particular, the so-called Dormant Commerce Clause).
Because the Pennsylvania Supreme Court had not addressed Norfolk Southern's Commerce Clause argument below, Justice Alito encouraged consideration of that issue by the Pennsylvania Supreme Court on remand. Consistent with this point, the majority opinion includes a footnote stating that it, too, is not reaching the Commerce Clause argument given that the Pennsylvania Supreme Court had not addressed it below.
Thus, the central constitutional issue raised in Mallory appears to remain open on remand for reconsideration under a Dormant Commerce Clause analysis.
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