Page:Mallory v. Norfolk Southern.pdf/35

4 consent would violate the Fourteenth Amendment’s Due Process Clause. In Pennsylvania Fire, we held that there was no due process violation in these circumstances. Given the near-complete overlap of material facts, that holding, unless it has been overruled, is binding here.

Norfolk Southern has not persuaded me that Pennsylvania Fire has been overruled. While we have infrequently invoked that decision’s due process holding, we have never expressly overruled it. Nor can I conclude that it has been impliedly overruled. See (, dissenting). Norfolk Southern cites the International Shoe line of cases, but those cases involve constitutional limits on jurisdiction over non-consenting corporations. See International Shoe, 326 U. S., at 317; Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 927–928 (2011); Daimler AG v. Bauman, 571 U. S. 117, 129 (2014); BNSF R. Co. v. Tyrrell, 581 U. S. 402, 415 (2017) (declining to consider defendant’s alleged consent because court below did not reach it). Consent is a separate basis for personal jurisdiction. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 703 (1982); Burger King Corp. v. Rudzewicz, 471 U. S. 462, 472, n. 14 (1985); J. McIntyre Machinery, Ltd. v. Nicastro, 564 U. S. 873, 880–881 (2011) (plurality opinion). Pennsylvania Fire’s holding, insofar as it is predicated on the out-of-state company’s consent, is not “inconsistent” with International Shoe or its progeny. Shaffer v. Heitner, 433 U. S. 186, 212, n. 39 (1977).

Nor would I overrule Pennsylvania Fire in this case, as Norfolk Southern requests. At the least, Pennsylvania Fire’s holding does not strike me as “egregiously wrong” in its application here. Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (, concurring in part) (slip op., at 7). Requiring Norfolk Southern to defend against Mallory’s suit in Pennsylvania, as opposed to in Virginia, is not so deeply unfair that it violates the railroad’s constitutional right to due process. International Shoe, 326 U. S., at 316.