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Rail worker’s suit puts originalism on trial at high court

The originalist approach that the conservative majority tends to favor is being put to the test by a rail worker who wants to sue his former employer in a state where neither of the parties resides. 

WASHINGTON (CN) — A rail worker who says his work exposed him to cancerous chemicals struggled at the Supreme Court on Tuesday to advance his suit in Pennsylvania. 

The problem Robert Mallory has run into over the course of litigation is that both he and his employer of almost 20 years, Norfolk Southern Railway Co., are residents of Virginia. Mallory has colon cancer, and he says it's because of the asbestos and other toxic chemicals he was exposed to on the job. 

In arguments before the court this morning, the Keller Postman lawyers representing Mallory leaned into a favored theory of the conservative majority: originalism. Against the business interests in the case, however, many of the conservative justices appeared tentative to accept that history and tradition were enough to override. 

“History and tradition move on,” Chief Justice John Roberts said, asking if the court’s more recent precedents put Mallory’s arguments in the “dustbin of history.” 

Justice Elena Kagan said Mallory’s arguments would leave companies at risk of being pulled into any state court for any reason. 

“It’s not fair and reasonable to haul any company into the court of any state on any ground, even if it has nothing to do with the company’s business in that state,” the Obama appointee said. 

Justice Brett Kavanaugh expressed a similar sentiment, claiming every company would essentially be forced to call every state home. 

“If you win, every state could have a statute like this, which would mean, I assume, that every business would be at home throughout the country,” the Trump appointee asked Mallory’s attorney. 

Norfolk Southern registered as a foreign corporation to do business in Pennsylvania where it owns almost 3,000 miles of track. Mallory claims this registration equates to the company’s consent to jurisdiction. 

He took the matter to Washington after the lower courts found otherwise. The justices have agreed to decide if Pennsylvania’s corporate registration statute violated the due process clause by automatically granting jurisdiction over nonresident businesses sued in the state. 

While the railroad has made some arguments that its claims are supported by originalism, Mallory claims these arguments give the theory “lip service.”

“As far back as 1827, states enacted laws like Pennsylvania’s, and by 1886 or shortly thereafter, every state in the union had at least one and often several consent-by-registration statutes,” Keller Postman attorney Ashley Keller said. 

Keller continued: “With history, tradition and precedent on Mr. Mallory’s side, how can my friend challenge Pennsylvania law under the original meaning of due process?” 

Mallory also claims that many states have similar laws to Pennsylvania and warned the justices against a ruling that would subvert Congress’ authority. 

“Congress has tools at its disposal, from removal to preemption, if it appears that the sky is falling,” Keller said. “There is no need for this court to short-circuit the political process in the name of the Constitution.” 

Norfolk Southern’s arguments are heavy on business interests, claiming that Pennsylvania’s approach is unfair. The railroad contends that its registration is not based on implied consent and that the suit should be filed elsewhere. 

“All we have here is a lawsuit by a nonresident of Pennsylvania against a corporation that is a nonresident of Pennsylvania on a cause of action that arose outside the state of Pennsylvania,” said Carter Phillips, an attorney with Sidley Austin representing the railroad. 

Not all of the justices were convinced by arguments from Norfolk Southern. Justice Ketanji Brown Jackson said Pennsylvania’s statute allowed residents to have a forum to bring lawsuits and said companies do not have to operate in every state. 

“It sounds like the state is saying, if you would like to do business in the state, you don’t have to do business in the state, you can, as your friend on the other side said, make a choice,” the Obama appointee said. “You don’t have to come here.” 

The government also participated in the case, urging the justices to reject Mallory’s arguments, calling them a jurisdictional “free-for-all.” 

“It would allow Pennsylvania to inject itself into a suit that implicates only other states’ interests,” Deputy U.S. Solicitor General Curtis Gannon said. “It would threaten international comity by doing the same thing to foreign corporations doing business in the United States.” 

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