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.
After that ruling, ATS cases went forward. But there were lots of questions. Could plaintiffs sue people who "aided and abetted" human rights abuses, while not committing them? For that matter, could corporations be sued at all, or did "the law of nations" only allow suits against individuals? The Second Circuit dismissed Kiobel on the grounds that corporations could not be sued. That question was appealed to the Court, but the Justices after argument reframed it as posing an even more radical question: Perhaps, the Court suggested, the statute should never apply to any events occurring outside the United States?
At first glance, this case would seem like a strong candidate for "originalist" analysis. But it also illustrates the sharp limits of originalism as a method of actually deciding cases. When the ATS was passed there were almost no international corporations, and no human-rights norms at all. Piracy was almost the only "universal" crime, meaning that all civilized nations recognized it as an offense and took jurisdiction over cases. And norms of civil liability -- the grounds for private lawsuits over violations of human rights -- were, to say the least, undeveloped. (In fact, as Kathleen Sullivan, lawyer for Royal Dutch, pointed out, there weren't lawsuits against pirates at that time. Instead, a victim of piracy would bring a "libel" under maritime law against the pirate ship, claiming the value of ship and contents as compensation.)
Today, we live in an interconnected, highly litigious world, where human rights norms are encapsulated in complex treaties -- like the Convention Against Torture -- and enforced both in national courts and in international tribunals. No matter how it may be phrased, a decision in Kiobel will, and must, be based on pragmatic, forward-looking concerns (including the practices of other countries), not on our dim perceptions of the "intent" of the ATS.
Those concerns dominated the justices' questions: would the case be different if the plaintiffs could bring suit in a "fair" foreign forum? Should the State Department have a veto over allowing cases to proceed? Would recognizing these extraterritorial causes of action subject American corporations to being sued in foreign courts?
The latter question was very much on the mind of Justice Anthony Kennedy, whose vote will likely be dispositive. "It's your position," he asked Paul Hoffman, the lawyer for the plaintiffs, "that if a U.S. corporation commits an international law violation in the United States, that U.S. corporation can be sued in any court in the world?"
Kennedy has, in his mind, turned the case inside out. Rather than about American suits against foreign companies for foreign conduct, it has to him become a case about dangerous foreign lawsuits against American courts for American conduct.
In his rebuttal, Hoffman pointed out that other countries have already begun to allow human-rights lawsuits against foreign corporations: "Twenty-one days after the argument in February, a Dutch court gave damages to a Palestinian doctor for wrongful imprisonment and torture that occurred in Libya against two Libyan defendants that were not even present in the courtroom," he said.
That verdict, he added, may have depended on a finding that Libyan courts would not afford a fair forum for the doctor's claim, he said. But those distinctions are part of both the plaintiffs' and the government's arguments. Both urge that the Court not make a blanket rule against suits for conduct outside the United States, but instead allow lower courts to consider the unique factors of each case to determine whether it will go forward.
Lurking behind Kennedy's question is a sense the if the U.S. sets a rule against these lawsuits, the rest of the world will have no choice but to follow our lead. That may have been true at one time, but it certainly isn't true today. International bodies, the European Union, and individual states are developing their own rules of jurisdiction. Many countries are more serious about international human rights than we are; and the example of the United States isn't always persuasive.
In fact, Kennedy's question reminds one of the Ravenous Bugblatter Beast of Traal in the late Douglas Adams's Hitchhiker's Guide to the Galaxy. Though ferocious, the Bugblatter could be eluded simply by draping a towel over your head.
That's because the Bugblatter "thinks if you can't see it, it can't see you."