Carefully assessing judicial politicization gives us fresh reasons to doubt the attitudinal model.
The Supreme Court has just released its decision and opinion(s) in Kiobel v. Royal Dutch Petroleum. I haven’t read or analyzed this carefully, but here’s the gist of it:
Kiobel involves the hotly contested question of whether the Alien Tort Statute, 28 U.S.C. 1350, permits courts to recognize a cause of action for torts in violation of customary international law—and if so, what causes. On its face, the ancient statute (part of the 1789 Judiciary Act) is purely jurisdictional: it says 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.” That tells you where to sue and who may sue, but it doesn’t say what torts “count.” In Sosa v. Alvarez Machain, 542 U.S. 692 (2004), the Supreme Court held that aliens can sue over torts that are like—in character, specificity, and international consensus—the “violations of the law of nations” recognized in 1789: violations of safe conduct, infringement of the rights of ambassadors, and piracy. What does that mean, though?
Kiobel arose over allegations that Royal Dutch, foreign company with operations in Nigeria, cooperated in the torture of Nigerian nationals in that country. The Supreme Court heard one round of argument over the question of whether international law recognizes corporate liability but then ordered re-briefing and re-argument on the questions of whether such “F-cubed” actions—foreign plaintiff, foreign defendant, foreign events—can be heard here at all.
And the answer is: nope. All the justices agreed on that, but for very different reasons. Writing for the conservative majority, Chief Justice Roberts said that the ATS, like all statutes, comes with a strong “presumption against extraterritoriality”: if stuff happens outside the U.S., courts won’t assume that it’s covered under our laws unless Congress said so.
There follows the customary don’t-close-the-door Kennedy concurrence (maybe some extraterritorial stuff isn’t really extraterritorial when you think about it). Then, there’s a concurrence by Justice Alito (joined by Justice Thomas) warning, to my mind rightly, that “extraterritoriality” isn’t all there is to it: the task of identifying, or rather narrowing, the substantive causes of action remains. And then, there comes Justice Breyer’s de facto dissent (joined by Justices Ginsburg, Sotomayor, and Kagan). In Kiobel, the only U.S. connection was Royal Dutch’s small New York office, plus the trading of its shares on the NYSE. That won’t do. However, the blanket presumption against extraterritoriality, per Breyer, doesn’t really fit the ATS: it’s about stuff that looks pretty international, like safe conduct and especially piracy. So we should look to other factors:
[G]uided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.
In my offhand judgment, Justice Breyer’s argument about the ATS and its “fit” with the presumption has force. (The Chief has an answer, but it’s a very close call.) What this is actually about, though, is a monitoring problem; and on that, the Chief is right.
The ATS has become a playpen for a cabal of international law enthusiasts and plaintiffs’ lawyers. Couple the former’s wild-eyed global aspirations with the latter’s eagerness to drag corporations through our one-of-a-kind tort system, and it’s Katy, bar the door. The Chief’s rule blocks all that: if it happened abroad, that’s it. Justice Breyer’s position, in contrast, would compel the Court to monitor all the places and institutions where this stuff gets out of hand: the Ninth Circuit; the wildest district courts in the country; the folks who are in charge of the Restatement of Foreign Relations; and the people who crank up “customary” international law (which becomes “customary” when someone at Yale Law School says it is, and the Swedish Minister of Foreign Affairs agrees). If some foreign employees of a U.S. company sue other employees of that company over tortious sexual harassment at the company’s foreign plants, has the defendants’ conduct “substantially and adversely affect[ed] an important American national interest,” that of serving as a beacon of sexual equality in the world? You tell me.
To ask the Supreme Court to keep an eye on this is to declare surrender. So it’s good that the Court has drawn a line. Whether it’ll hold, we’ll see.