This morning in Jesner v. Arab Bank, the Supreme Court split 5 – 4 along conventional ideological lines to confirm that it is up to Congress, not the judiciary, to decide whether and when American courts should entertain international human rights cases against foreign defendants. It thus continues the course of its 2013 Kiobel v. Royal Dutch Petroleum case, about which I wrote here at the time:
Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades‐long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide‐ranging method of hauling overseas damage claims into American courts. All nine Justices agreed with the Second Circuit that the statute does not grant jurisdiction for our courts to hear a controversy over alleged assistance in human rights violations outside the U.S. against non‑U.S. plaintiffs by a non‑U.S. business. A majority of five justices reiterated and relied on our law’s strong traditional presumption against extraterritoriality, that is to say, presumption against applying the law to actions that take place in other countries. While parting from this reasoning, four concurring justices nonetheless endorsed a view of ATS as applicable extraterritorially only to very extreme misconduct comparable to piracy, and also as sharply limited by considerations of comity with foreign sovereigns.
It is a good day for a realistic and modest sense of what United States courts of justice can successfully do, namely: do justice within the United States.
But in Kiobel, as Kenneth Anderson noted in the Cato Supreme Court Review that year, the Court ducked the question it had originally agreed to decide: may foreign corporations be sued in U.S. courts under the ATS, or only individuals? The correct answer is that Congress, not the courts, should decide. Issues of foreign affairs are peculiarly the province of the political branches, which can weigh (and take responsibility for) the dangers of engendering friction with foreign sovereigns by extending liability (Jordan, an important U.S. ally, has for years been riled by the attempt to go after Arab Bank over handling transactions, including some in New York, that allegedly facilitated terrorist acts abroad.)
The only time Congress chose affirmatively to create such a cause of action, in a 1991 statute providing torture victims a right to sue over abuse abroad, it placed significant limits on the right, among which was providing that only individuals could be sued. Parallel restrictions should be read into other, unenumerated causes of action under the ATS, said Justice Anthony Kennedy in his opinion for the majority today; that means that unless Congress says so, the statute would enable holding individual wrongdoers liable but not imputing their liability to an organization. Writing separately in partial or full concurrence, Justices Gorsuch, Alito, and Thomas would have gone further to make clear that courts should simply not get into the business of inventing causes of action in this area, especially given the ATS’s history as an early American enactment meant to reduce rather than exacerbate diplomatic tensions.
Not too many years ago, whole sectors of American legal academia were besotted with notions of “universal jurisdiction” in which misbehavior taking place in Africa, Latin America, or Southeast Asia could be sued over in American courts — in practice, often, in certain West Coast federal courts that welcomed such suits. The Court’s retreat from that proposition has been steady and prudent. Despite the dissent by Justice Sonia Sotomayor, no one has immunized business miscreants against anything. The Court has simply made it clear that if the United States courts are to become a sort of human rights policeman to the world, it is Congress that will need to decide to fit them out for that task.