(Posted October 7, 2020) While we hold our collective breath to see if The Robes in Richmond will hand down any published rulings tomorrow, I thought I’d mention a couple of interesting appeals on the other side of the Potomac.

On Monday – the celebrated First Monday in October – the Supreme Court of the United States heard argument in Carney v. Adams, an appeal challenging Delaware’s attempt to keep its higher-court judiciary balanced between Republicans and Democrats. The law there states that judges are appointed so that one party has a bare minimum majority. The state’s supreme court, for example, has three Ds and two Rs. This, the thinking goes, ensures judicial balance.

What’s wrong with that, you ask? The problem, from the perspective of respondent Adams, is that not everyone is a Democrat or a Republican. This system disqualifies anyone affiliated with a minor party, or no party at all. They’re simply ineligible.

There are two issues here. The threshold issue is procedural: Adams indicated that he wanted to be considered for a judgeship, but he never formally applied. He regarded that application as a useless and futile step. The Court will have to consider if, in light of this, he has standing.

The second issue is on the merits: Can a state systematically discriminate against those folks who decline to adopt a particular political affiliation? A district judge answered that question in the negative, and the Third Circuit agreed, striking down the provision.

The comparison with Virginia is easy: Our judges don’t have express party affiliations, so there’s no overt requirement to be a member of any party. Tacitly, though, even casual observers realize that a politically unaffiliated candidate for a Virginia appellate court starts out in a deep hole, because politicians – members of the General Assembly – choose who gets a robe here. If you don’t like this system, consider that in 22 states, voters choose jurists after sometimes nasty political campaigns. That stomach-turning prospect is enough to make you warm to our system, with all its warts.


The next case I’ll mention is for procedure geeks: Ford Motor Company v. Montana 8th Judicial District, which is being argued as I type this. This appeal will determine whether SCOTUS jurisprudence will continue its steady move back to the old Pennoyer v. Neff doctrine.

Here’s the issue: A driver was killed in a wreck in Montana. Deciding to sue Ford on a products-liability theory, the decedent’s personal rep filed the suit in Montana. Ford replied that it wasn’t subject to in personam jurisdiction in the courts of that state. Oh, yes you are, replied the plaintiff, pointing out that Ford advertises extensively there, and ships cars to dealerships in the state.

But Ford pointed out that its alleged negligent act of manufacturing the car occurred in a plant in Kentucky. And a Ford dealer in the State of Washington sold the car to the original purchaser. Ford claimed that there was no causal connection between its advertising/dealership activities in Montana and this collision.

This raises issues of personal jurisdiction, which can be general or specific. Under recent SCOTUS jurisprudence, Ford is “at home” in Michigan, where its headquarters are, and in Delaware, where it was incorporated. That means that the courts of those states have general jurisdiction over the company; you can sue it for any cause of action there, even cases where the injury or other default occurred elsewhere.

Special jurisdiction requires that Ford’s contacts with a forum state “give rise or relate to” the plaintiff’s claim. Thus, if the decedent’s car had been made or originally sold in Montana, then that state’s courts could hear the case. This appeal turns in part on whether “give rise to” means pretty much the same thing as “relate to.” The former suggests proximate causation; if that’s the test, then it looks like the plaintiff will have to pack its bags for a Michigan or Delaware court. The plaintiff’s lawyers are arguing that the two phrases have different meanings, and “relate to” is broader. The plaintiff argues that a ruling in Ford’s favor would dramatically limit longarm jurisdiction, meaning that many plaintiffs will simply give up and not pursue a claim that must be brought in a remote jurisdiction.

The Court will hear hot-button issues in other appeals in this Term; these two cases will interest a far more limited audience. I’m not much good at making forecasts in SCOTUS appeals, but since I’m not betting my mortgage on this, I’ll go ahead: I believe that the challenger, Adams, will win in the Delaware judiciary appeal, and Ford will secure a valuable ruling in its case. If you went to law school and learned that International Shoe v. Washington was the gold standard in personal jurisdiction, you have some catching up to do.