{"id":7345,"date":"2012-03-08T00:01:26","date_gmt":"2012-03-08T08:01:26","guid":{"rendered":"http:\/\/www.politicsplus.org\/blog\/?p=7345"},"modified":"2012-03-08T00:01:27","modified_gmt":"2012-03-08T08:01:27","slug":"will-scotus-overreach-again","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2012\/03\/08\/will-scotus-overreach-again\/","title":{"rendered":"Will SCOTUS Overreach Again?"},"content":{"rendered":"

Most of you will agree that Citizens United<\/em> is the worst Supreme Court decision since Dred Scott<\/em>.  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.<\/font><\/p>\n

\n

\"8shellguilty\"In a stunning order Monday, the U.S Supreme Court essentially said it had been looking at the wrong issue<\/a> 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<\/a>, the recasting of Kiobel has the potential to devastate U.S. human rights litigation based on overseas conduct<\/strong>.<\/p>\n

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<\/a>. The Kiobel merits briefing by Shell and the Nigerian claimants (available here<\/a>) mostly addressed the corporate liability question.<\/p>\n

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<\/a> 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?"<\/p>\n

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"?<\/strong>\u2026 [emphasis added<\/em>]<\/p>\n<\/blockquote>\n

Inserted from <Thomas Reuters<\/a>><\/p>\n

I can\u2019t 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\u2019s 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.<\/font><\/p>\n

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<\/em>.<\/font><\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-7345","post","type-post","status-publish","format-standard","hentry","category-politics","category-5-id","post-seq-1","post-parity-odd","meta-position-corners","fix"],"_links":{"self":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/7345","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/comments?post=7345"}],"version-history":[{"count":0,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/posts\/7345\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/media?parent=7345"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/categories?post=7345"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.politicsplus.org\/blog\/wp-json\/wp\/v2\/tags?post=7345"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}