Justice Scalia’s Super Body (And, no, it has nothing to do with the Constitution’s Free Exercise Clause. Really.)*

First, Justice Anthony Kennedy wants to know what possible connection there is between Esther Kiobel, the wrongs she says unfolded in Nigeria, and the United States. The answer the plaintiffs’ lawyer, Paul Hoffman, gives is that his clients live here because the U.S. government gave them asylum. Also, Royal Dutch Petroleum does plenty of business here. 

Kennedy doesn’t like the sound of that. “Your position is that a U.S. company that allegedly commits a human rights violation could be sued in any court in the world?” he asks. Note the switch—now it’s our homegrown corporation, not a company called Royal Dutch, that’s the pirate.

Justice Antonin Scalia backs up Kennedy, asking whether it will be “some super body that decides what constitutes a violation” of human rights. This is not a superhero kind of super body. It’s the kind that usurps U.S. sovereignty. Hoffman tries to erase the image: The courts of nations around the world have long determined human rights norms, he says. But Scalia is with Kennedy: unhappy about a world in which U.S. corporations can be held liable for human rights abuses in foreign courts. Justice Samuel Alito doesn’t like Hoffman’s notion either, and Chief Justice John Roberts seems skeptical, too. 

Hoffman next addresses all the ways his clients could still get kicked out of court, even if they make it past today’s tangle with the Alien Tort Statute. They could be told to file suit in Nigeria, or the Netherlands or the United Kingdom, where Royal Dutch Petroleum is based. Hoffman concedes that it’s not clear from the record whether they’ve done so yet. (This is the doctrine called exhaustion, which is how it feels to be told to go back and start over somewhere else.) Kiobel and the other plaintiffs could also be told that another forum, outside the United States, is simply better. (This is the doctrine called forum non conveniens, the rare Latin phrase that makes sense without translation.)

Pardon me.  But it sure sounds like Scalia’s complaint is really with—Can this be?—the Founders, who, by enacting a statute that gives federal courts jurisdiction to hear claims by aliens for torts “in violation of the law of nations,” provided that it will be some super body that decides what constitutes a violation of human rights.  And (assuming that Scalia thinks there should be an “exhaustion” requirement, even though, clearly, there is not one in the language of the statute) who—those lame Founders!—failed to include an “exhaustion” requirement in the statute.

Ditto for Kennedy, who’s angry because he thinks that the very first Congress’s position was that a U.S. company that allegedly commits a human rights violation could be sued in any court in the world, even though the statute actually only provides for lawsuits in U.S. federal courts, not for lawsuits in other countries’ courts.  Or at least, he later explains, he’s angry, and worried, that if the United States Congress can pass a law that allows aliens to sue foreign corporations in United States courts for torts “committed in violation of the law of nations or a treaty of the United States, that might encourage other countries to retaliate and enact a similar, mirror statute.  And then, woe is Exxon Mobil. 

Repeatedly during yesterday’s argument, Kennedy raised issues with such a policy.

Why didn’t President Washington veto that law, for Chrissake!? Instead, the jerk, and that Congress, left it to a future generation of justices to rewrite the statute to limit it to lawsuits against U.S. companies and foreign companies that commit torts against a U.S. alien in violation of the law of nations or a treaty of the United States. (A generation of justices that includes four who, only three months ago, railed against their five colleagues for what the four railers said was an unconstitutional rewriting of a statute, no less. A very high-profilestatute.)

Oh, but wait. That original Congress actually did write the Alien Tort Statute to say that. Verbatim. Even though the statute could encourage other countries to retaliate and enact a statute of their own that allows a U.S. company that allegedly commits a human rights violation to be sued in a court in that other country for violations of the law of nations, as defined by some super body.

Other countries haven’t done that yet. But they could. Whether or not the Supreme Court rewrites the Alien Tort Statute to discourage them from doing so, they could. Too bad that didn’t bother President Washington enough for him to veto the statute.

Also repeatedly yesterday, Samuel Alito reiterated his own demand at the earlierargument to know what, pray tell, connection the events at issue in the case have with this country.  But a better question is, why is that any of the Supreme Court’s business?  As the Court’s conservatives—led obsessively in recent years by Kennedy and Thomas—repeatedly remind at the robotic urging of state attorneys general, the Constitution grants Congress, not the courts, the authority to determine what types of cases the lower federal courts have “subject-matter jurisdiction,” i.e., the legal authority, to hear.  
This congressional power is subject to the constraints of other parts of the Constitution—for example, the Fourteenth Amendment and the Supremacy Clause, which Kennedy, et al., forget (or pretend to forget) apply to limit state courts’ free rein lest those insignificant parts of the Constitution infringe upon the sovereign dignity (their words, not mine) of states, by which they mean the sovereign dignity of state courts.  But the Fourteenth Amendment was added to the Constitution by a new set of framers, not the vaunted ones of the late 1700s, so that part of the Constitution doesn’t matter very much to the state-courts’-rights-to-violate-the-constitutional-rights-of-individuals crowd.  Unless of course some state legislature has, say, infringed upon the equal protection rights of an upscale high school student in Texas who graduated just below the top 10% of her high school class.  Or some other state legislature has limited the rights of corporate people to buy state politicians. 
The defendant oil company in Kiobel v. Royal Dutch Petroleum doesn’t claim that the ATS would violate the Constitution if it is interpreted to allow lawsuits against them, by aliens, in federal court.  They just argue that the statute shouldn’t allow this, because, well, the events at issue have no connection with the United States and no other country has a similar law.  This appears to be good strategy, since, at least when state-court criminal defendants raise constitutional challenges in separate habeas corpus proceedings in federal court, the defendants almost always lose because the Supreme Court has interpreted a 1996 “jurisdictional” statute as effectively delegating to state courts the authority to violate the Constitution’s many guarantees in criminal cases.  This requires the federal courts to ignore not only the Fourteenth Amendment and the Supremacy Clause but also the provision in the Constitution’s provision that bars the suspension of the right of habeas corpus.

Kennedy’s incessant refrain in these cases is that, well, this is what Congress intended, and under the Constitution it is Congress that has the authority to enact federal-court-jurisdiction statutes.  But, setting aside whether the Supreme Court’s interpretation of that 1996 statute is even conceivably an accurate reflection of the intent of that Congress in enacting it, and the expectation of President Clinton in signing it—It was an election year, but still … really?—Kennedy & Co. never appear concerned with the many, many, many policy problems caused by, say, thedramatic difference between the right of a federal-court criminal defendant or prisoner, and the right of a state-court criminal defendant or prisoner to effectively assert constitutional rights.  That is, by the fact that the Supreme Court has interpreted that statute as effectively eliminating that right by state-court defendants or prisoners.   

Or, say, by the utterly unexplained privileging of state judicial branches, which now are virtually free to violate individuals’ constitutional rights, at least if those individuals are criminal defendants, and the other two branches of state governments: the legislative and the executive branches.  Professional courtesy is, well, courteous, but there really legitimate reason to make it a constitutional principle?

Tomorrow, the Court will hear a case in which that very issue will be addressed.  Seven years ago, almost to the day, in a unanimous opinion issued in a case called Dye v. Hofbauer, without full briefing and oral argument, the Court interpreted that 1996 statute, known as the Antiterrorism and Effective Death Penalty Act (AEDPA), as requiring the state appellate courts to actually acknowledge the existence of a federal constitutional issue raised by the criminal defendant in the appeal, and then to actually analyze and rule on that federal constitutional issue, if the state courts were to be entitled to the “deference” that AEDPA requires the federal courts to accord the state courts when the state court ruling is challenged in federal court as unconstitutional.  A “deference” that in recent years has morphed into abdication—into a blatant flipping of the Constitution’s Supremacy Clause.  The case to be heard tomorrow is Johnson v. Williams, and in it, the Court will decide whether to overrule Dye—explicitly or, more likely, in effect without saying that that’s what it is doing.

All in the name of the Constitution, y’know.  The very same Constitution that is about to allow the justices to rewrite a jurisdictional statute written by the Founders, so that it complies with the policy preferences of the current Supreme Court majority.

When I read the transcript of tomorrow’s argument in Johnson, I’ll be looking for inquiries by Kennedy and Alito about the many policy problems with AEDPA, especially as the flip-the-Supremacy-Clause interpretation of it has metastasized over the years.  I won’t be holding my breath waiting to read that in the transcript, though, because I don’t want to turn blue.

Dye, by the way, was the first opinion issued by the Court, in the early fall of 2005, after John Roberts was sworn in.  But that was then, and Kennedy hadn’t yet fully gained his sovereign-dignity-of-state-courts sea legs.  Nor had he yet managed to convince the sycophantic so-called liberals to quietly join him in this juggernaut.  All the better for them to go along to get along when it’s a case that—bet on it—will get no mainstream-media attention.  

It’s not like Johnson is a noisy culture-wars case, after all.  Not at all like it is. 

UPDATED: Scotusblog’s Lyle Denniston posted an excellent pre-argument rundown on Johnson v. Williams this afternoon.