Justices grant new cases, send Indiana abortion cases back for a new look

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices granted five new cases, for a total of four additional hours of argument. The biggest news from the order list was the announcement (which I covered in a separate post) that the court will weigh in on whether the Department of Justice must disclose secret materials from Special Counsel Robert Mueller’s investigation to the House Judiciary Committee. The remaining new cases, which are likely to be argued in the fall, all involve issues relating to international law and foreign relations.

Two of the cases involve immunity for foreign governments and foreign officials from lawsuits in U.S. courts, arising from claims that date back to Nazi-era Germany and World War II. As a general rule, foreign countries cannot be sued in U.S. courts. But there are several narrow exceptions to that rule, outlined in the Foreign Sovereign Immunities Act, including the “expropriation exception,” which allows lawsuits against foreign countries involving rights in “property taken in violation of international law,” as long as there is a commercial link to the United States. In Federal Republic of Germany v. Philipp, the justices will weigh in on the scope of this exception.

The plaintiffs in the case are the heirs of Jewish art dealers who lived in Germany in the 1930s. They are seeking to recover a collection of valuable medieval relics that, they contend, the art dealers had been obliged to sell to the Nazis at well below market price. The U.S. Court of Appeals for the District of Columbia Circuit agreed that the expropriation exception applied and allowed the lawsuit to go forward. In the D.C. Circuit’s view, the plaintiffs had alleged that their property had been taken “in violation of international law” because they argued that the sale of the relics was part of the Nazi genocide. The court of appeals dismissed Germany from the lawsuit, however, finding that the commercial nexus to the United States required by the expropriation exception did not exist; SPK, the German government institution that runs the Berlin museum where the relics are on display, remains in the case. The court of appeals also rejected Germany and SPK’s argument that, even if the U.S. courts have the power under the FSIA to take up the plaintiffs’ suit, they should still dismiss the case out of courtesy – a doctrine known as international comity – because the plaintiffs should have first pursued all the remedies available to them in German courts. Germany and SPK then went to the Supreme Court, which asked the federal government to weigh in earlier this year.

In a brief filed in late May, the federal government urged the justices to grant review. Although it stressed that the “United States deplores the atrocities committed against victims of the Nazi regime, and supports efforts to provide them with remedies for the wrongs they suffered,” the government argued that the D.C. Circuit’s ruling was wrong because the taking of property by a citizen’s own government does not violate international law. Moreover, the government continued, the D.C. Circuit should not have ruled that the FSIA “leaves no room” for U.S. courts to decline to exercise their jurisdiction over a case out of deference to the interests of another country. The justices granted review today, but it denied a cross-petition filed by the plaintiffs, who asked the court to weigh in on whether the expropriation exception applies to Germany when the relics are not in the United States.

The issue of international comity is also at the heart of Republic of Hungary v. Simon, a lawsuit filed in a federal court in the U.S. by Jewish survivors of the Hungarian Holocaust against Hungary and its state-owned railway, MAV. The plaintiffs claimed that Hungary had worked with the Nazis to exterminate Hungarian Jews and seize their property, while MAV aided in that effort by transporting Hungarian Jews to death camps and taking their possessions from them before they boarded the trains. The government agreed with the Hungarian government that the international comity question warrants the Supreme Court’s attention, but it told the justices that they should take up the issue in Philipp, rather than Simon. Despite that recommendation, the justices granted review in Simon today.

The Alien Tort Statute is an 18th-century law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international human rights laws. The justices agreed today to weigh in on whether the law can be used to sue U.S. corporations. The justices granted two petitions involving that question – one filed by U.S. agricultural behemoth Cargill, the other by Nestle USA, a U.S. subsidiary of the Swiss food and beverage giant. The companies were sued in federal court in California by plaintiffs who allege that they are former child slaves from Mali who were forced to work on farms in Cote d’Ivoire that grow cocoa beans, in violation of international law. Cargill and Nestle USA, the plaintiffs contended, knew that child slave labor was (as the lower court described it) a “pervasive problem in the Ivory Coast” but aided and abetted the violations of international law by buying cocoa beans from those farms and by providing technical assistance to the farms.

The U.S. Court of Appeals for the 9th Circuit allowed the lawsuit to go forward. The court of appeals first concluded that the court’s 2018 decision in Jesner v. Arab Bank, barring ATS lawsuits against foreign corporations, did not rule out lawsuits against U.S. corporations. The lower court also determined that the lawsuit had a sufficient U.S. connection to the kind of violations of international law that the ATS targets because the plaintiffs’ “allegations paint a picture of overseas slave labor” that the companies “perpetuated from headquarters in the United States.”

The Supreme Court asked the federal government for its views last year, and in May the federal government recommended that the justices take up the case. The government made clear that the “United States unequivocally condemns child slavery and those who aid and abet it, and is committed to fostering respect for human rights.” But, the government continued, the Supreme Court’s review of the 9th Circuit’s ruling is warranted because the court of appeals was wrong to hold that U.S. corporations can be sued under the ATS and to recognize that defendants can be sued under the ATS for aiding and abetting violations of international law; both of those questions, the government argued, are better left for Congress, rather than the courts, to decide. The government suggested that the justices grant Cargill’s petition and hold Nestle’s petition, but the justices opted instead to grant both petitions; the cases will be argued together sometime in the fall.

The court sent two different challenges to Indiana laws regulating abortion, both of which went by the name Box v. Planned Parenthood of Indiana and Kentucky, back to the lower courts for another look after the justices’ ruling on Monday in June Medical Services v. Russo, which struck down a Louisiana law that requires doctors who perform abortions in that state to have the right to admit patients at a nearby hospital. One petition stemmed from a challenge to a law that would require pregnant women to have an ultrasound at least 18 hours before obtaining an abortion. The federal court concluded that the ultrasound requirement would place an “undue burden” – the standard established in the Supreme Court’s abortion cases – on a woman’s right to choose to terminate her pregnancy because only four of Planned Parenthood’s clinics have ultrasound machines; by contrast, the court reasoned, the requirement does not necessarily advance the state’s interest in protecting fetal life and dignity because women are not required to look at the ultrasound pictures. The U.S. Court of Appeals for the 7th Circuit upheld that ruling, but now it will take another look. Today’s order did not specify exactly what the lower court should do when (like the Supreme Court in June Medical) it has already struck down the law. However, the decision to send the case back for another look rather than simply deny review suggests that the Supreme Court wants the 7th Circuit to apply the more lenient test outlined in the concurring opinion filed by Chief Justice John Roberts in June Medical, which would not include a balancing of the benefits of the law against the burden it places on pregnant women.

The second petition arises from a challenge to a law requiring young women to notify their parents before obtaining an abortion. The 7th Circuit ruled that this law was also unconstitutional, prompting the state to ask the justices to weigh in on both the law itself and whether abortion providers have a legal right to challenge the law on behalf of their patients. Following today’s order, the court of appeals will now reconsider this case in light of June Medical.

The justices declined to wade into two other cases related to abortion – specifically, the right to protest near abortion clinics. They denied review in Reilly v. City of Harrisburg and Price v. City of Chicago, both of which involved challenges to “buffer zones” around abortion clinics. Justice Clarence Thomas indicated that he would have granted the petition in Price.

The justices will not fast-track a dispute over mail-in voting in Texas. Last week the justices denied a request from the Texas Democratic Party and Texas voters to temporarily reinstate a ruling by a federal trial court that would have allowed all eligible voters in the state to vote by mail in the 2020 election cycle. Today the justices turned down a request by the same plaintiffs to expedite consideration of their petition for review. The Democratic Party and voters had asked the court to set a briefing schedule that would allow the justices, if review were granted, to hear oral argument and issue a decision ahead of the election in November. But the justices refused to speed up their review process; instead, the court will apparently consider the petition at its conference in late September, which means it will not announce whether it will hear oral argument until a little more than a month before the election.

The justices did not act on a group of petitions (discussed here) asking them to weigh in on the authority of the Federal Trade Commission to get a court order requiring defendants to return money obtained through illegal activities. The justices do not currently have any more conferences scheduled before their summer recess. However, they traditionally hold a conference and release orders shortly after issuing their final decisions of the term to dispose of any petitions that they may have been holding until they decided related cases on the merits, and those orders sometimes also act on new cases.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the respondent in Republic of Hungary v. Simon. The author of this post is not affiliated with the firm.

This post was originally published at Howe on the Court.