Yet despite declining to address the political question issue (which generally is deemed a jurisdictional issue), the panel devoted most of its pages to deciding that the plaintiffs — who alleged that the defendants had aided and abetted violations of international law by the South African apartheid government by providing economic aid that kept that regime afloat — had stated a claim upon which relief could be granted under federal common law. I would have thought that addressing the aiding-and-abetting issue (an issue that is being contested in virtually every one of the scores of pending suits under the Alien Tort Statute) was inappropriate until after the court assured itself that it really had jurisdiction. (The panel finessed that issue by relying on Second Circuit precedent that holds — quite erroneously — that a federal court lacks jurisdiction over ATS claims that fail to state a claim upon which relief can be granted.)

Bottom line: the plaintiffs have a strong argument (particularly in light of Sosa) that the federal courts lack jurisdiction because the case raises nonjusticiable political questions. But getting the Supreme Court to address that argument prior to final judgment may be difficult because it was not addressed by the Second Circuit. And in the meantime, the Second Circuit has decided the most important legal question in ATS litigation in a case in which it probably lacked jurisdiction.

Full disclosure: while I have had no involvement in this case, I intend to offer my assistance to the defendants’ effort to obtain Supreme Court review.