April 25, 2012
Click here for the first post on strip searches for minor offense arrestees.
Click here for the second post on Obama’s remarks on SCOTUS’s health care deliberation.
Click here for the third post on SCOTUS’s ruling on qualified immunity and outside counsel.
Alison Frankel, in a recent post in her On the Case blog at Thomson Reuters News & Insight, lamented the Supreme Court’s recent ruling in Mohamad v. Palestinian Authority as hypocrisy on the Court’s part.
The Supreme Court ruled that corporations are like real people in regards to free speech rights under the First Amendment in Citizens United v. FEC, but the Court also ruled in Mohamad that corporations are not people when accused of human rights violations.
Actually, I noted the same disparity at the end of February in regards to the Court’s likely decision in Kiobel v. Royal Dutch Petroleum (which the Court pushed off deciding until next term – more on that here).
So I obviously agree with Ms. Frankel on the Court’s double standard, but I actually think that Mohamad doesn’t present as compelling of support for this contention as Kiobel does, and the difference comes down to the laws at the center the respective cases.
At issue in Mohamad was the Torture Victim Protection Act of 1991 (TVPA), which allows a victim of torture or extrajudicial killing (or his estate) to sue his “individual” torturer or killer.
Mohamad’s ruling narrows the scope of the TVPA to “individuals,” which, in legal parlance, means “natural” or real-life persons (not organizations or corporations).
Frankel’s post made it clear that she did not agree with the Court’s apparently invented distinction between the words “person” and “individual.”
There is a significant difference, though: “person” has long been taken to mean a “natural” person (i.e. a human being) or a “fictional” person (a corporation or other entity that only technically exists on paper).
“Individual,” on the other hand, almost always refers to a natural person (usually, when mentioned in a statute, “individual” is listed alongside “organization” to apply to both natural and fictional persons).
When assessing liability, the TVPA’s text specifically contains the word “individual,” but not “organization,” so it shouldn’t be surprising that the Supreme Court ruled unanimously in Mohamad that “individual” does not mean “fictional person” in the TVPA.
1789’s Alien Tort Statute (ATS) at the center of Kiobel makes no such distinction.
Instead, it just grants “district courts” original 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 [U.S.]”
The broad language used seems to completely preclude the Court’s finding any difference between corporate and individual tort liability for human rights violations.
As usual, though, the Court found a way around this: at oral arguments, several of the conservative Justices commented about how this statute is unique in the international community and there doesn’t seem to be a justification for it.
Those would be great arguments for striking down the law…if the Supreme Court was a legislative body.
So, instead of considering whether the ATS applies to corporations for human rights abuses committed abroad, the Court rescheduled oral arguments for Kiobel, pushed the case back until next term, and broadened the question before it to determine whether the ATS can be used at all.
As I wrote in an earlier post, the Court already knows how it’s going to rule on that question, and it’s just using this maneuver to limit corporate tort liability stemming from the ATS.
That’s not to say that the Court wasn’t motivated by limiting corporate liability in the Mohamad ruling – it’s the Roberts Court after all, so it almost certainly was.
However, the laws involved in Mohamad did give the Court a lot more to work with so that it didn’t need to take such brazenly irregular steps to satisfy these underlying motivations (probably because 1992’s Congress was far more interested in prioritizing corporate interests than 1789’s Congress).
In any case, as Frankel wrote, with the Mohamad ruling, the Supreme Court has “gutted human rights litigation in U.S. courts,” and from the looks of it, that seemed to have been the Court’s intent from the start.
This really shouldn’t come as any surprise, though.
Since corporations can’t be tortured, raped, or murdered abroad, why would the Roberts Court concern itself with safeguarding legal protections against such human rights violations?