Well, it’s that time of year again—when the Supreme Court justices interrupt their primary careers of flitting around the world (some of them), or at least around the country (the remainder of them), to teach a law school course or two, to instruct high court justices in other countries on how to feign working full-time, and to reassure us all yet again that they’re all great friends. With one another.
That last one is not least. It is instead a perennial, and a great relief to those of us who care more about the justices’ working conditions during their occasional-days job than with, say, the fact that as a practical matter, we really have no Supreme Court. Which we don’t, except for the 68-or-so occasions each year when they deign to answer the call of duty, usually of a state whose dignity has been affronted by a federal appeals court that has placed some importance of a constitutional magnitude upon the dignity of an individual [pdf required] who wasn’t complaining of one of infringement upon one of the three or four rights that conservatives privilege over the right of states to violate them, or by a corporation that otherwise would have to deal with a class action lawsuit. Or by the group Citizens United.
So … no more tips to law students to stay upbeat and focused. Not from the leading expert on such matters, anyway. And no more sycophantic predictions of the horrors that would befall society if cameras were allowed at the Court’s arguments and the news media selected only short clips of Antonin Scalia’s snideness or Anthony Kennedy’s state-courts-but-not-state-executive-or-legislative-branches-are-entitled-to-flip-the-Supremacy-Clause-in-order-to-save-our-republican-form-of-government rants. Not to mention in order to save our Republican form of government. Which the court did not, in an actual oral argument, anyway, opting instead for a summary order rather than full briefing and an in-court airing.
No, sir, no more such helpful insights from the ultimate experts until at least the third week of October, anyway. They break then, after an exhausting five full—er, five half—days of oral argument and two, count- ’em, two, afternoon conferences, but, unlike other breaks during the winter and spring, only for about 12 days. During which time, they do read a few of the law clerk “cert. pool” one- or two-paragraph memos recommending a denial of review on virtually every petition filed by a private party who is not represented in the petition by one of the—what? ten, or so?—de facto-gatekeeper Supreme Court“specialist” lawyers, who by sheer virtue of the fact that they charge about $1,000 an hour and will guarantee that at least one actual justice will read the petition—most certainly are special. So it’s not as if these folks don’t work during their (many, many) off hours. (I mean, on Court business! What? Did you think I meant on writing incessantly banal or downright misleading and deeply self-serving books?)
Anyway … the justices kick off their term this year with a bang. Of sorts. This particular bang was supposed to occur last term, in a case called Kiobel v. Royal Dutch Petroleum Company, that will decide whether a statute called the Alien Tort Statute, passed in 1789 to deal with piracy on the high seas, gives our country’s federal courts the authority to hear cases filed by non-Americans against foreign corporations, or foreigners at all, for injury to person or property that occurred outside the United States. The statute provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The case gained a lot of attention last spring when the justices heard oral argument on it, and some of them, but surprisingly not Samuel Alito, indicated that they wanted to rule that “aliens” did not include corporations, irrespective of whether they’re offshore ones or are instead incorporated in, say, Delaware and are therefore people at least for purposes of First Amendment free-speech and free-association rights.
But shortly after the oral argument, a majority of the justices decided that Alito, not to mention Mitt Romney, had the better argument. Corporations should be considered people, my friend, even when that means they can be sued under the Alien Tort Statute*. At least until Super Pacs funded by these people can put in place enough members of Congress to enact a change to that statute. Like, to repeal it. But as it currently exists, the Statute should apply only to corporate people who also are American corporate citizens.
Which is what Alito had suggested. The majority, egged on by Kennedy from the very outsetof the argument, already had decided that they should rewrite the statute to limit it to actions to which the United States has some association. “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection,” Kennedy said. The quote was itself a quote, verbatim, from an amicus brief filed by Chevron Corporation.
So … voila! So much for textualism in judicial interpretation of statutes. The text of this particular statute requires … originalism, the first-line-of-defense fall-back for the likes of Scalia and Clarence Thomas. Unless, of course, some of those pirates targeted by the statute back in circa 1789 weren’t Americans.
Back to plan A?
*Correction, Oct. 2: The statute is known by two names: The Alien Tort Statute (ATS) and the Alien Tort Claims Act (ATCA). My original post called it the Alien Tort Act.