The Stealth Revolution in Personal Jurisdiction

Since 2011 the Roberts Court has decided six personal jurisdiction cases that impose significant new constitutional restrictions on the power of courts and limit plaintiffs’ access to justice. But the Court’s opinions explaining those decisions have repeatedly denied that the Court is altering settled law. This Article argues that the Court is engaged in a stealth revolution, a process of radically changing existing law while claiming to follow controlling precedent. By claiming to rely on precedent, the Court avoids the need to offer a clear rule of decision, fails to explain the policies that motivate its changing approach to personal jurisdiction, and fosters a narrative of lower court lawlessness that both devalues the work of the lower courts and erodes public confidence in the judiciary.

This Article urges the Court to acknowledge that it is reforming the law of personal jurisdiction, to provide reasons for its new restrictions on the power of courts that are grounded on constitutional principle and sound policy, and to construct a narrative that relates its programmatic reform of personal jurisdiction to the history and purpose of the Due Process Clause or to some other appropriate constitutional authority.