Tradition and the Judicial Talent

I previously suggested that a traditionalist judicial decision is self-consciously so. It demonstrates a keen interest in the coherence and continuity of particular legal practices and authorities over long periods of time. It is intentional about retransmitting and re-cementing those enduring legal practices and authorities in its own decision. And its traditionalism emerges from a close reading of the opinion and from attending to the court’s understanding of its own role.

In this respect, consider the plurality opinion authored by Justice Scalia in Burnham v. Superior Court. Burnham is a relatively late entry in a long line of cases in which the Supreme Court expounded the power of state courts to exercise personal jurisdiction over defendants. The Due Process Clause of the Fourteenth Amendment imposes certain limitations on this power.

But the Burnham plurality traces the roots of these limitations as far back as the fifteenth century English Yearbooks and the seventeenth century decision of Lord Coke in The Case of Marshalsea concerning the Court of Marshalsea’s jurisdiction over the King’s household and domestics. In his Reports, Coke said of the Case of Marshalsea that though the law of personal jurisdiction was known before it,

as in great Rivers, the courses, windings, fillings in, and out-lets are by experience vulgarly known, whereas the very Fountain and Head it self lie many times hidden and secret, so in this very Case, the Capacity, Process and Priviledge of this Court was often resolved in our Books and Years of Terms, and the Jurisdiction commonly known, and yet the true original Institution and Fountain it self lay somewhat deep and obscure, until it was wrought out by Antiquity, which hath so manifested the true sense of the ancient.

Coke’s method is highly traditionalist; indeed, it evokes the story of the Turkish stones in my previous post. It illuminates a long-standing and continuous legal practice by recourse to its antiquity. The law’s reason is thus “given light” and reconfirmed by an investigation of its ancient origins.

Thus, while the Supreme Court did say in the 1878 case of Pennoyer v. Neff that the judgment of a court lacking personal jurisdiction violates the Due Process Clause, that holding was simply continuous with and a ratification of the traditional rule in American courts before passage of the Fourteenth Amendment, which was in turn continuous with and a ratification of the traditional rule in previous English law. Indeed, Pennoyer itself says that in determining what the Due Process Clause requires, courts must be guided by the “well-established principles of public law respecting the jurisdiction of an independent State over persons and property.”

In 1945, however, the Court announced a somewhat different formulation: whether the assertion of personal jurisdiction satisfies “traditional notions of fair play and substantial justice.” In a series of subsequent cases that are the bane of first-year law students of Civil Procedure, the Court departed from various 19th century precedents in finding that defendants without physical presence in a state, but with some degree of contact or activity within that state, might or might not be subject to the state’s jurisdiction. Over time, the Court relaxed Pennoyer’s strict territorial rule of personal jurisdiction to account for changes in technology, communication, and interstate business activity that necessitated a more flexible evaluation of an out-of-state defendants’ amenability to personal jurisdiction.

Burnham involved the different question whether the state of California could assert personal jurisdiction in a divorce action over a defendant who was physically present within the state. The defendant had entered California on business and to visit his children, and he claimed that the more flexible approach for defendants without physical presence should apply in his case as well. The Court disagreed:

The distinction between what is needed to support novel procedures and what is needed to sustain traditional ones is fundamental….The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” That standard was developed by analogy to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction.

In so holding, the Burnham plurality denied that a state’s exercise of personal jurisdiction over a defendant depends solely on measuring the extent of his contacts with the state against abstract, evolving, and ultimately subjective tests of fairness or justice.

The plurality also noted that its methodology differed significantly from Shaffer v. Heitner, in which the Court had stated that “traditional notions of fair play and substantial justice” may be “readily offended by the perpetuation of ancient forms that are no longer justified.” Justice Brennan’s concurrence in Burnham likewise urged the Court to apply “contemporary notions of due process.”

The Burnham plurality responded that it was doing just that, for “contemporary notions of due process” just exactly are the “traditional notions of fair play and substantial justice” that “are applied and have always been applied in the United States.” These notions are not the playthings of the justices. They are not judicially evolving notions. Neither are they merely historical notions. They are traditional notions. Personal jurisdiction over a defendant physically present within a state may be reformulated as “fair” (as Justice Brennan urged) because the defendant could “reasonably” have expected it. But his expectation would have been reasonable only because personal jurisdiction in such circumstances is traditional: “fairness,” the plurality said, “exists here because there is a continuing tradition.” The tradition can change, of course, if a state wishes to change it. But the overwhelming majority of states had not, and it was not the justices’ proper role to do so.

The plurality opinion in Burnham is, in sum, one of the Court’s most traditional decisions. And in its response to Justice Brennan’s progressive understanding of the judicial role, one is reminded of Eliot’s famous essay, Tradition and the Individual Talent: “Some one said: The dead writers are remote from us because we know so much more than they did.” Precisely, and they are that which we know.