Argument recap: In search of an ATS compromise
on Oct 1, 2012 at 2:35 pm
Clearly wary of turning U.S. courts into monitors of rogue governments around the world, an apparent majority of the Supreme Court opened the new Term Monday in pursuit of ways to limit the reach of a 1789 law that has had the potential to give American judges that very role. Still, a majority did not seem inclined to narrow the Alien Tort Statute nearly into non-existence. A compromise seemed in the offing in the major new test case of Kiobel v. Royal Dutch Petroleum.
The law, dating from the first Congress but little used until modern times, has led U.S. courts into deep explorations of human rights abuses that occur in foreign countries, in ways that make some foreign governments leery of American intrusion and the U.S. government wary of retaliation. The Court itself had previously given some encouragement to that trend, but more recently had seemed concerned that some restraints may be needed. That was what it has been pondering during two hearings by the Justices, first last Term and now this Term, on the Kiobel case. But the impression it gave on Monday was that new ambiguity, rather than new certainty or simplicity, could emerge in the final decision.
The simplest option open to the Court — and it was urged fervently by one lawyer — would be to rule that the ATS simply has no role to play whatsoever when a claim of atrocities abroad has no immediate connection with the United States — that is, if foreign nationals sued foreign entities in a U.S. court for human rights violations that allegedly occurred entirely overseas. But that option looked harsh, as Justices spoke of the kinds of evil that are known to occur — by, for example, the Nazi regime’s Hitler — that might be regarded as the modern equivalent of lawlessness such as piracy that had prompted the founding generation to enact the ATS to do something about it.
Where to draw lines short of shutting down all but a few, U.S.-related cases, however, was quite elusive as the hour-long hearing proceeded. Each of the three lawyers met, in turn, a barrage of skepticism from across the bench.
Paul L. Hoffman, a California lawyer representing Nigerian nationals claiming killing and torture in their homeland, faced claims that his approach would mean no limits on a worldwide pursuit of human rights justice, potentially disrupting diplomatic relations generally. Kathleen M. Sullivan, a New York lawyer for the big foreign oil companies sued in the case and seeking to head off almost all ATS claims, encountered suggestions that her view would cut back even on ATS claims that the Court has already allowed. And U.S. Solicitor General Donald B. Verrilli, Jr., arguing against the Kiobel claim but pleading to keep the courts open to at least some ATS cases, ran up against arguments that he was switching away unpersuasively from the more clear-cut position taken by the government in the past.
The case was before the Court last Term, focusing on the question of whether corporations could be sued under ATS. Rather than decide that question, though, the Justices told lawyers to come back this Term with arguments on whether the ATS was meant to have any application to claims by foreigners against foreigners for foreign conduct. Justice Samuel A. Alito, Jr., who began pressing that more basic issue at the prior hearing, was again wondering on Monday why the Kiobel case had any justification for its presence on an American court’s docket. Aside from Justice Stephen G. Breyer, who appeared to be making some efforts to salvage this case from dismissal, no other member of the Court appeared to be its champion. Beyond that, though, there was no apparent consensus.
One task that most of the Justices seemed to agree they faced, as they now move toward a decision on Kiobel, is how to interpret the Court’s most important precedent up to now on the ATS’s scope: the 2004 decision in Sosa v. Alvarez-Machain. That decision barred an ATS lawsuit by a Mexican national against other Mexicans for incidents that occurred in Mexico, but it also was a dispute that had a U.S. connection. The Sosa precedent, though, did indicate that some other ATS claims might fare better, without giving any specific guidance on which ones might.
The Sosa ruling came up repeatedly in Monday’s discussion, and the Justices pressed the oil companies’ lawyer on whether the Court would have to overrule that decision in order to rule for those companies. Their lawyer said no, but she also left the impression that, unless Congress had authorized any such lawsuits that reached outside the borders of the U.S., any such case should be blocked from U.S. courts.
An idea floated by Justice Alito, and also pursued by Justice Breyer, was whether the courts on encountering an ATA case could get guidance from the State Department on whether the case threatened U.S. relationships with other countries if the case were allowed to go forward, with that guidance getting at least some solid respect from the courts. Attorney Hoffman appeared to embrace the idea, but some Justices wondered whether the courts would actually accept the State Department’s advice. Hoffman also tried to save some significant ATS discretion in the courts by arguing that judges have the tools to keep those cases from reaching too far. There also was some discussion of whether an ATS case should be barred if the suing party had not first tried to get some remedy in the country where the alleged international law violations had occurred.
Justice Sonia Sotomayor seemed to gain some traction by embracing an idea put forth in a brief from the European Commission, which would limit ATS cases to those in which a judicial forum was really the only one in which some remedy for human rights violations might be obtained — what Sotomayor called “a forum by necessity” whose powers would be clearly defined and limited.
Justice Alito spoke what appeared to be the sentiment of several members of the Court in defending the fairness of foreign courts to handle claims of atrocities that occurred within their borders.