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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. 

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

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UPDATE On Kiobel v. Royal Dutch Petroleum. And How It Could Impact ‘Court-Stripping’ Jurisprudence.*

Last Wednesday, the day after oral argument at the Supreme Court in a case called Kiobel v. Royal Dutch Petroleum, both Linda and I posted about the case.  Linda’s post I believe was written shortly before the argument although posted afterward.  Mine was written after the argument and discussed news reports about what occurred.  The title of Linda’s post was “The Supreme Court’s corporate monsters–if money buys them “free speech” rights, can it help them avoid giving others human rights?” The title of mine was “International Law, As Established At Nuremberg*: The ACTUAL Grounds On Which the Supreme Court Will Rule For Shell Oil’s Parent Company In Kiobel v. Royal Dutch Petroleum.”  (I added the asterisk and the related footnote later that night, to make clear that the part of the title that preceded the colon was intended as a sarcastic reference to a statement made by the oil company’s counsel during oral argument, a statement I discussed in the post.)

To refresh your memory—it was barely more than a week ago, but in the intervening time, we’ve all been somewhat distracted by more important things, such as whether slightly-increased private healthcare premiums caused by the inclusion of contraceptives coverage really is public welfare paid by “taxpayers” and therefore women who receive the benefit are prostitutes—my post began by explaining the supposed issue in the case.  I wrote:
In her post earlier today on Kiobel v. Royal Dutch Petroleum, the sort-of-CitizensUnited-like case argued yesterday in the Supreme Court, Linda discusses the issue that was supposed to be the one that the Court would decide, because, well, that was the issue that the lower appellate court, the Second Circuit Court of Appeals, decided.  The issue is whether under the Alien Tort Statute, which was enacted in 1789 and allows “aliens” to file civil lawsuits in the U.S. for violations of the “law of nations,” allows aliens to sue corporations, or instead only individuals, for violations of human rights as defined under clearly-established international law.

The Second Circuit court said it doesn’t, and, as the excerpt from that opinion that Linda posts shows, the appellate panel used as its justification the judges’ own moral judgment that since individuals (i.e., the corporation’s top executives) make the corporate decisions to leverage the corporation’s resources to accomplish these heinous acts, only those individuals, and not the ill-used corporation itself, should be suable.  And that therefore, only those individuals, and not the ill-used corporation itself, will be suable in U. S. federal courts under the ATS.

This notwithstanding that the statute itself says nothing at all about who can be sued under it; it states only what acts the actor can be sued for.  And notwithstanding that the Second Circuit panel’s stated grounds for the ruling, if not necessarily the result (the dismissal of the lawsuit), conflict with the Supreme Court’s ruling two years ago in Citizens United v. FEC.  Which parlayed the First Amendment free-speech right of individuals into a right of corporate CEOs to leverage those rights of its individual human shareholders into a First Amendment speech right of the CEO to use corporate funds to advance his or her political preferences.

I noted that Anthony Kennedy, author of the Citizens United opinion, reportedly indicated that he agreed with the oil company’s statement in its brief that international law does not recognize corporate liability.  Case closed, as far as he was concerned.  But several of the justices disagreed—most emphatically Stephen Breyer and Elena Kagan, but Alito seemed to, too. 

But I went on to say that I expected from what transpired that the Court wouldn’t decide that issue at all and would instead decide the case on entirely separate grounds asserted by Samuel Alito during the argument but not addressed earlier in the case.  Alito questioned whether the statute applies as against anyone, corporation or individual, when, as in that case, the acts alleged occurred outside the United States, by someone or some entity not based in the United States, against people who have no connection to the United States.  I predicted that a majority led by Alito would say it does not.

It now looks like I was right.

On Monday afternoon, the Court issued a surprise order in the case, asking that the parties brief the following issue:
Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

The briefing won’t be completed until June 29, and so the Court will decide the case next term, not during the term that ends by July 1. 

The defendant in Kiobel did not claim that the statute provides federal-court jurisdiction (the legal authority to hear the case) only for cases alleging violations of international law that occurred within the United States—probably because the words of the statute suggest otherwise, and because in a 2004 case filed under that statute, in which the acts at issue occurred outside the United States , the Supreme Court gave no indication that it does.  But as SCOTUSblog’s Lyle Denniston noted, the defendant in another current ATS case does.  That defendant lost in the appellate court, and filed a petition asking the Supreme Court to consider the issue in that case.  The justices considered the petition last Friday and took no action on that petition.  Instead, they inserted the issue into Kiobel, in an order described variously by commenters as surprising, unusual, and stunning

The injection of this issue into Kiobel enables the justices to avoid ruling on whether the statute, enacted the same year that the Constitution was ratified, applies only to allow suits against individuals and not against violations corporations under whose auspices the human rights violations occurred. 

The one-sentence statute says: “The 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 law of nations does not allow corporations to have atrocities committed under their auspices, whatever yoga-like linguistics contortions Justice Kennedy’s mind or law clerks performed that caused him to suggest otherwise at the argument.

But neither do the statute’s words suggest that it does not apply to (as the Court put it in its briefing order) violations of the law of nations occurring within the territory of a sovereign other than the United States.  If the statute adopts international law only to identify what torts—what actions—can be the subject of a suit in the country, and not to identify who (or what) can be sued, then it shouldn’t matter that (according to Kennedy at oral argument, quoting from a brief supporting the oil company) this country appears to be the only one in the world to “exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”  But it will, although possibly circuitously.
“What business does a case like this have in the courts of the United States?” Alito asked.  None, a majority of the Court is likely to say, and not because the defendant is a corporation but instead because the atrocities alleged occurred in Nigeria rather than in the United States.  But since the statute itself doesn’t say that, the majority of justices will have to either interpret it as implying that it does or say that the statute must be interpreted in that matter in order to avoid striking it down as unconstitutional, because (they’ll say) Congress lacks the authority to give the federal courts jurisdiction to hear cases about wrongs committed outside the territorial United States. 

Which would be a novel ruling, but one that, as Denniston points out, Alito seemed to suggest by asking: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?” 

Article III is the section of the Constitution that created the judicial branch.  It’s also the part of the Constitution that says that Congress, which Article I created, has the authority to grant the federal courts jurisdiction (legal authority) to hear certain types of cases.*  In enacting the ATS, Congress granted the federal district courts the authority to hear “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.”

But there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

There are other parts of the Constitution, such as Article II, which created the executive branch, that may limit Congress’s authority to create federal-court jurisdiction.  This is what Alito appears to have in mind.*

And conversely, there are other parts of the Constitution—the Bill of Rights; the Fourteenth Amendment (due process, equal protection of the law); the prohibition against suspension of the right to habeas corpus and against ex post facto laws and bills of attainder (protections included in the original Constitution)—that appear to require access to federal court in order to challenge, whether or not Congress provides for it. 

Or at least it would seem so.  The political right is incessantly trying to remove federal-court jurisdiction to hear cases that they claim violate states’ rights to violate individuals’ rights—a tactic called “court-stripping.”  And one that, with the aggressive assistance of the current Supreme Court, has been phenomenally successful in effectively suspending (read: eliminating) the right of federal-court habeas corpus review by persons convicted of crimes in state court. “Phenomenally” is no overstatement, either.  It’s truly a phenomenon, and one that needs its own post.

Court-stripping and the reverse—I’ll call it court-mandating—are issues that the Supreme Court normally avoids like the plague, best as I can tell.  But if nothing else good comes from Kiobel—and it certainly looks like nothing else will—a Supreme Court acknowledgment that there are constitutional limits to Congress’s authority to determine federal-court jurisdiction might be the consolation prize.  But only if that limitation is viewed as a two-way street.

*This post originally referred to Article I (establishing Congress) as Article II, and referred to Article II (establishing the executive branch) as Article I.  Ooops.

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International Law, As Established At Nuremberg*: The ACTUAL Grounds On Which the Supreme Court Will Rule For Shell Oil’s Parent Company In Kiobel v. Royal Dutch Petroleum

In her post earlier today on Kiobel v. Royal Dutch Petroleum, the sort-of-CitizensUnited-like case argued yesterday in the Supreme Court, Linda discusses the issue that was supposed to be the one that the Court would decide, because, well, that was the issue that the lower appellate court, the Second Circuit Court of Appeals, decided.  The issue is whether under the Alien Tort Statute, which was enacted in 1789 and allows “aliens” to file civil lawsuits in the U.S. for violations of the “law of nations,” allows aliens to sue corporations, or instead only individuals, for violations of human rights as defined under clearly-established international law.

The Second Circuit court said it doesn’t, and, as the excerpt from that opinion that Linda posts shows, the appellate panel used as its justification the judges’ own moral judgment that since individuals (i.e., the corporation’s top executives) make the corporate decisions to leverage the corporation’s resources to accomplish these heinous acts, only those individuals, and not the ill-used corporation itself, should be suable.  And that therefore, only those individuals, and not the ill-used corporation itself, will be suable in U. S. federal courts under the ATS.

This notwithstanding that the statute itself says nothing at all about whocan be sued under it; it states only what acts the actor can be sued for.  And notwithstanding that the Second Circuit panel’s stated grounds for the ruling, if not necessarily the result (the dismissal of the lawsuit), conflict with the Supreme Court’s ruling two years ago in Citizens United v. FEC.  Which parlayed the First Amendment free-speech right of individuals into a right of corporate CEOs to leverage those rights of its individual human shareholders into a First Amendment speech right of the CEO to use corporate funds to advance his or her political preferences.

The plaintiffs in the case, 12 Nigerians, allege that Shell Oil aided and abetted the Nigerian government in committing horific violations of human rights against protesters of the company’s operations in that country in the 1990s.  According to the several reports I’ve read about yesterday’s argument, Anthony Kennedy, author of the Citizens United opinion, said at the very outset that he agreed with Shell’s statement in its brief that international law does not recognize corporate liability. Case closed.
But Elena Kagan (not a personal favorite of mine, for reasons that I’ll leave for another post, but someone who does demonstrate the ability to recognize distinctions in procedural/jurisdictional law in response to Kennedy’s indications that he cannot, and who is not shy about showing it; this is the second time in about a year that Kagan has done that during an oral argument) pointed out that international law addresses the acts that violate universally accepted human rights, but is silent on who can be sued for committing those acts.

And Samuel Alito and Stephen Breyer agreed. “Let’s assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a 10 corporate agents. Would we say that the corporation cannot be sued under the Alien Tort Statute?” Slate’s Dahlia Lithwick quotes Alito as asking Kathleen Sullivan, Shell’s lawyer.  Who responded, “Yes, because there is no assaulting ambassador norm that applies to corporations.” Oh?  Does the State Department’s Foreign Service know this?  

Lithwick also quotes Sullivan as saying that “Nuremberg, if it established nothing else, established that it is individuals who are liable for human rights offenses.” She must be right that that’s what the Nuremberg trials established, since the Nuremberg prosecutors didn’t indict Volkswagen and try to have it executed. 

Breyer suggested that pirates should incorporate themselves, under the name “Pirates, Inc.”  A company in which I want to buy stock, if it ever goes public. Under international securities law.  As established at Nuremberg.

Nuremberg, by the way, didn’t establish “nothing else.”

Lithwick suggests that a majority of the justices will not say that corporations cannot be sued under the ATS.  Given the 5-4 ruling in Citizens United, the juxtaposition of the two opinions would be too damaging to the Court’s standing among the public.  I agree; after all, the First Amendment doesn’t say that corporations have First Amendment speech rights, nor mention corporations at all, but that didn’t stop the majority of justices from …  well ….

But neither do I think the Court will say that the ATS does allow lawsuits against corporations for violations of internationally recognized human rights. I think a majority will decide not to decide that issue at all, in this case.  Instead, a majority will say what Alito said at another point: that the statute was not intended to allow people who have no connection to the United States to sue under the statute for violations of human rights by anyone—human or corporate—that himself/itself has no legal-status connection to the United States and that occurred outside the United States.  The Nuremberg defense will have to await another day to succeed or not.

Alito’s French-ambassador-assaulted-in-the-U.S. hypothetical was not a random fact selection. The purpose of the statute, it was made clear during the argument, was to grant ambassadors to the U.S. the right to sue in U.S. court for violations of human rights committed in the U.S—rights they have long had here anyway.  But this is a very old statute, and apparently predates those rights.  The statute itself doesn’t say that it’s limited to circumstances involving victims or perpetrators who have with legal ties to the U.S.  But, whatever.  

I expect that the Court will fill in those blanks.  Although I won’t bet on it. I’ll save my money instead for the Pirates, Inc. IPO.

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*Just to be clear: The first part of the title—the part before the colon—is intended as sarcasm.  It’s a takeoff on Kathleen Sullivan’s weird claim about the meaning of the Nuremberg trials.

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