Federal law mandates that the Supreme Court’s annual Term begins the first Monday of October. And so on Oct. 1, Chief Justice John Roberts gaveled the Court to order to hear its first case since June’s historic Obamacare decision, in another big case with major implications for American law.
In 1789, the first Congress passed the Alien Tort Statute (ATS), granting jurisdiction to federal courts to hear civil cases brought by aliens (noncitizens) regarding violations of international law. The Court began the new Term by considering arguments over this ancient law.
Barinem and Esther Kiobel (Barinem is now deceased) are Nigerians who suffered human rights abuses by the Nigerian government. In Kiobel v. Royal Dutch Petroleum, the surviving wife Esther sued an international oil company under the ATS for allegedly aiding and abetting the Nigerian government in carrying out these abuses. The wrongful conduct took place entirely on foreign soil, by a foreign government against its foreign citizens, and the defendant is a foreign corporation. Kiobel is currently in the U.S. because she received asylum from our government as a political refugee.
This case turns entirely on the reach of the ATS, as Justice Anthony Kennedy signaled with his first question, asking what connection these persons and corporation have with the United States. Kiobel’s lawyer Paul Hoffman answered that they regard the ATS as authorizing federal courts to exercise “universal jurisdiction” to consider claims that originated anywhere on the planet.
Justice Antonin Scalia was skeptical at the outset, asking, “Is there some super body that decides what constitutes a violation of the particular norms of international law?” When Hoffman answered that national courts judge these cases, Scalia asked if the shoe were on the other foot, “To give national courts [of other nations] power to determine whether a United States corporation in the United States has violated a norm of international law is something else.”
Justice Samuel Alito followed by asking about a possible case where the State Department tells the federal court that moving forward in a particular situation would be harmful to America’s foreign policy and possibly endanger Americans abroad. When Hoffman persisted in saying the federal judge would still have authority to proceed, it’s likely he lost Alito’s vote.
This case is it was originally argued last year, but six days after argument, the justices asked for supplemental briefs on whether the ATS could reach beyond our shores, and ordered it reargued this year.
Kiobel’s position is that U.S courts can reach anywhere on earth. Solicitor General Donald Verrilli argued that the Court should leave open the possibility of reaching into foreign lands, but not here where all the parties are foreigners, the defendant is a foreign corporation, and that defendant didn’t abuse anyone—only aided a foreign government that did so.
The position argued by Kathleen Sullivan, an accomplished liberal law professor representing Royal Dutch Petroleum, was that the ATS only applies when foreigners bring suit on matters that occurred on American soil. This position was also advanced by conservative legal hero Paul Clement, the former Bush solicitor general who argued Obamacare and a host of other major cases, filing a brief on behalf of other businesses.
As they point out, the purpose of the ATS is to foster good relations with other nations by providing a route where U.S. courts can impose justice on foreign bad guys when they’re on American soil. But in recent years, American courts’ increasing willingness to impose our will on foreigners for their actions on foreign soil—interfering with those foreign nations and how they want to deal with the situation—has instead caused serious diplomatic tension.
In the end, it looks like Dutch Petroleum might have five votes for a win. The likely choice is whether five justices go with the broad, no-foreign-application rule pushed by conservatives, or instead take the Obama administration argument on denying ATS jurisdiction in this case, but leaving the door open to claim the authority to project our judicial power abroad in future cases.
A decision is expected early next year.
Breitbart News legal contributor Ken Klukowski is on faculty at Liberty University School of Law.