The Supreme Court granted fifteen new cases after its beginning-of-the-term conference, but there' seems to be little of major originalist interest in any of them. One worth mentioning, though, is CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd., in which the question presented is:
Whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act.
The Ninth Circuit answered this question "yes", over a dissent from denial of rehearing en banc by Judge Patrick Bumatay (I've lost count of how many Bumatay dissents have led to cert grants).
As background, the federal Foreign Sovereign Immunities Act (FSIA) provides (in 28 U.S.C. ยง 1330(b)) that in suits against foreign sovereign defendants, "Personal jurisdiction over a foreign state shall exist" where the FSIA establishes an exception to sovereign immunity. The Ninth Circuit somehow managed to find that the statute requires plaintiffs suing foreign sovereign defendants to show not only that an exception to immunity exists, but also that the defendant has minimum contacts with the forum jurisdiction of the kind required for personal jurisdiction under the due process clause. As Judge Bumatay's dissent makes painfully clear, the statute absolutely does not say that, and especially with the Court's history of giving the FSIA a textualist reading, I'd be shocked if the Court found otherwise.
But that just sets up the more difficult constitutional question. Perhaps the personal jurisdiction section of the FSIA is unconstitutional. The central question becomes whether a foreign sovereign (or in this case a foreign state-owned corporation) is a "person" within the meaning of the Fifth Amendment. The answer is not obvious. Under current law, private corporations are "persons" for this purpose but U.S. states are not. As an originalist matter, the sometimes-originalist-oriented immunities scholar Ingrid Wuerth has a powerful article arguing on originalist grounds that foreign sovereigns are
"persons": Ingrid Wuerth, The Due Process and Other Constitutional Rights of Foreign Nations, 88 Fordham L. Rev.
633 (2019). But another sometimes-originalist-oriented scholar, my casebook co-author Donald (Trey) Childress, says otherwise: Donald Earl Childress III, Questioning the Constitutional Rights of Foreign Nations, 88 Fordham L. Rev. Online 60 (2019). And in Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992), Justice Scalia heavily implied that foreign states do not have constitutional rights. So there is a lurking issue of substantial originalist interest.
Sadly, though, the Court could easily reverse the Ninth Circuit on statutory grounds and remand for consideration of the constitutional issue (which would be a win for Judge Bumatay, but not very interesting).
Posted at 6:34 AM