Most of you will agree that Citizens United is the worst Supreme Court decision since Dred Scott. It was particularly remarkable in that the Court overreached through making decisions on issues that had not even been brought before the Court, essentially legislating from the bench, the epitome of judicial activism. Yesterday I learned of a case in which the Court appears to be doing the very same thing, changing a case to decide issues that were not brought before the court.
In a stunning order Monday, the U.S Supreme Court essentially said it had been looking at the wrong issue in an Alien Tort Statute case called Kiobel v. Royal Dutch Petroleum. It called for new briefs that reframe Kiobel as an examination of the extraterritorial application of the ATS. Given the justices’ reluctance to extend U.S. jurisdiction beyond our borders, expressed so fatefully in their 2010 ruling in Morrison v. National Austrialia Bank, the recasting of Kiobel has the potential to devastate U.S. human rights litigation based on overseas conduct.
The comparatively narrow question Kiobel originally presented to the Supreme Court was whether corporations can be held liable under the ATS, a once-obscure 1789 law that human rights advocates revived in the 1980s to address international atrocities against non-U.S. citizens. The 2nd Circuit Court of Appeals had ruled in Kiobel that corporations are immune under the ATS; three other federal appeals courts had held otherwise. The Kiobel merits briefing by Shell and the Nigerian claimants (available here) mostly addressed the corporate liability question.
But barely had Kiobel oral arguments begun last Tuesday when Justice Anthony Kennedy interrupted plaintiffs lawyer Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman & Harrison to point out that the United States appears to be the only country in the world to "exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection." (Kennedy was reading from an amicus brief Chevron filed in support of Shell.) Other justices picked up and amplified Kennedy’s point. Justice Samuel Alito put the question most bluntly, asking Hoffman, "What business does a case like this" — a suit by foreign nationals against a foreign-based corporation for its alleged complicity in state-sponsored torture and murder in Nigeria — "have in the courts of the United States?"
In other words, as the court put it in Monday’s order recasting Kiobel, "whether and under what circumstances [does] the Alien Tort Statute [allow] courts to recognize a cause of action for violations of the law occurring within the territory of a sovereign other than the United States"?… [emphasis added]
Inserted from <Thomas Reuters>
I can’t for a moment claim the legal expertise go understand all the ramifications of this case, or even how it should be decided. However, given America’s long tradition of giving foreign nationals access to sue corporations with significant resources in this country for human rights abuses, this appears, at least on its surface, to be an attempt by the fascist five Injustices to give corporate criminals cover to evade liability for crimes against humanity such as torture.
The one thing I do understand is that the issue before the court was an extremely narrow one, and that SCOTUS is attempting to legislate from the bench, just like they did in Citizens United.
12 Responses to “Will SCOTUS Overreach Again?”
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SCOTUS’ right-wing Justices clearly do NOT like the fact that there is the well-litigated Alien Tort Statute on the books that permits US courts to hear international human rights claims – even those involving multinational corporations.
When it came to Citizens United they were all-in on the concept of allowing corporations to have rights that had, heretofore, been reserved for citizens. And I’m sure they still are … except when inconvenient liabilities are attached to those rights.
Talk about “Having Your Cake and Eating It, Too” …
For those legal beagles, ScotusBlog has a good review and summary entitled “Kiobel to Be Expanded and Reargued”
Nameless, that comment is brilliant!
Another, I think related thought comes from Ra Sc on the Care2 network. Basically he said that if corporations are people as SCOTUS has deemed under Citizen’s United, then can corporations be extradicted to stand trial outside the US?
Very interesting thought and one I doubt the esteemed Injustices thought of.
“The one thing I do understand is that the issue before the court was an extremely narrow one, and that SCOTUS is attempting to legislate from the bench, just like they did in Citizens United.”
I agree and thanks to GWB…
Really! That’s why no Republicans can take the White House again!
The ATS is a long standing statute approved and signed into law by the then Congress and president, the only ones who could, and still can, make the laws, thus their moniker ‘lawmakers’. Any case arguing this should stick to the confines of the law as it stands. The law cannot be ‘gerrymandered’ to suit the politics of the day. It is up to SCOTUS to adjudicate based on the law, not make new laws.
I agree with you TC, “. . .an attempt by the fascist five Injustices to give corporate criminals cover to evade liability for crimes against humanity such as torture.
The one thing I do understand is that the issue before the court was an extremely narrow one, and that SCOTUS is attempting to legislate from the bench, just like they did in Citizens United.”
Exactly!
There used to be honor among Supreme Court justices, but deliberate, partisan conservative tampering with it and our entire judicial system has taken care of that. I’ve said it many times before: these blatantly pro-business, anti-worker legal activist conservative justices (whi are anything but impartial) should be impeached and removed from the court at the very earliest opportunity. They make an absolute mockery of the term “justice!”
The fascist five believe in just-us.
I agree with SoINeedAName in the comments – If the Court wants it’s Citizen United to stand & makes multi-national Corporations legal citizens of the US, Then those “citizens” should be tried when abusing other nation’s citizens!
AMEN!!! Can’t have their cake and eat it too!
Me too!