In a scenario out of Groundhog Day, Don Verrilli and the justices discuss a case that was already argued once last term.
"I have the honor to announce, on behalf of the Court, that the October 2011 term of the Supreme Court of the United States is now closed, and the October 2012 term is now convened," Chief Justice John Roberts said in the Court chamber Monday. Surely no one in the room felt regret at the end of last year's wretched term of Court, with its marathon oral argument session over the Affordable Care Act, its swarms of reporters frantically thumbing through slip opinions, its catty leaks from the justices' chambers, and its final collapse into a swamp of ill will and exhaustion.
But it was hard to escape echoes of OT11 during Monday's session. For one thing, the first case was a Groundhog-Day-esque repeat argument of a case originally heard in February 2012. For another, the elegant figure of Solicitor General Donald Verrilli, protagonist of much of the health-care drama, was at the lectern again.
Verrilli was asked why the government, which he represents, had changed its position on the case, Kiobel v. Royal Dutch Petroleum Co., a suit in U.S. court against a Dutch oil company by Nigerian plaintiffs alleging that the company aided and abetted human-rights violations by the Nigerian government in Nigeria. In the case's last iteration, the government had urged the Court not to throw the case out; this time around, the government suggested that the plaintiffs should lose.
Verrilli's old tormentor, Justice Antonin Scalia, interrupted the solicitor general early in his argument to press him on the government's change of position. "Why should we listen to you rather than the solicitors general who took the opposite position . . . not only in several courts of appeals, but even up here?"
Verrilli carefully responded:
Well, Justice Scalia, in a case like this one . . . the United States has multiple interests. We certainly have foreign relations interests in avoiding friction with foreign governments; we have interests in avoiding subjecting United States companies to liability abroad. We also have interests in ensuring that our Nation's foreign relations commitments to the rule of are not eroded. . . . It's my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law. . . . And we have done so.
Scalia responded, "[I]t was the responsibility of your predecessors as well, and they took a different position. So, you know, why -- why should we defer to the views of -- of the current administration?"
"Well," Verrilli replied smoothly, "because we think they are persuasive, Your Honor."
Of course this exchange concerned the issue of Kiobel -- when, if ever, should American courts hear human-rights cases against international corporations for conduct abroad? But there was a subtext. Verrilli had been flayed in the popular press for his seemingly ineffectual argument in the ACA case. In the end, though, five Justices had bought those arguments, and Verrilli, though bloodied, emerged the winner on points. Monday, he was like the kid who had studied taekwondo to face down the class bully. His dignified reply seemed to say, maybe you should just listen and think about what I am saying this time.
Scalia's reply was a meek, "Oh, okay."
The Kiobel case combines important issues about international human rights, foreign relations, and American foreign policy. The Nigerian plaintiffs alleged that Royal Dutch aided and abetted the Nigerian dictatorship in some very bad acts under international law -- "torture, extrajudicial executions, and crimes against humanity," as they recite in their opening brief. At the same time, the corporations are not American, neither are the plaintiffs; and the events happened abroad.
Lawsuits like this have been brought under the Alien Tort Statute, passed by the First Congress, which says federal courts have jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (The "law of nations" is Founderspeak for what we now call international law.) The record of the "original intent" of this statute is pretty bare, but at a minimum it was clearly designed to permit foreigners living in the U.S. to seek redress in federal court when local mobs or governments deprived them of international-law rights like diplomatic immunity.
Beginning in 1980, however, American lawyers began bringing successful cases against aliens in this country on behalf of other aliens who had been tortured by them in their homelands. But hearing claims for international-law violations committed abroad has always been controversial. In 1991, Congress codified the right to sue torturers in a new statute, the Torture Victim Protection Act. (Torture lawsuits, thus, won't be affected by the result in the current case.) In 2004, the Supreme Court held that the ATS provided jurisdiction only for a small number of international-law claims -- those recognized more or less everywhere as creating individual legal claims. Examples would be piracy or attacks on ambassadors.