Court Time: SCOTUS pulls a Citizens United on Kiobel

March 7, 2012

SCOTUS(Editor’s note: The Supreme Court typically hands down quite a few decisions in the month of March, some of these being quite significant.  Throughout the month, we’ll be looking at some of these significant decisions as they are announced.)

Last week, I wrote a post predicting the outcome of Kiobel v. Royal Dutch Petroleum, a case currently before the Supreme Court, and oral arguments were heard the same day.

The issue in the case is whether the Alien Tort Statute (ATS) can be invoked to assign tort liability against corporations for human rights abuses committed abroad.

There’s a bit more detail about the ATS in that post I mentioned, but that’s about the gist of what the case is about.

Or, at least, that’s what it was about.

On Monday, the Supreme Court rescheduled oral arguments for Kiobel, pushing the case back until the Court’s next term.


At least four of the Justices decided to add a new question for the parties to address:

“Whether and under what circumstances” the ATS can be used to assign tort liability for violations of international law.

In other words, instead of only looking at whether the ATS can be used to sue corporations, the Court now wants to look at whether the ATS can be used at all, and if so, under what circumstances.

The Court already knows the answer to this question (it is abundantly clear that the Justices already have their minds made up just by looking at statements during oral arguments).

I hope I don’t crush anyone’s idealism by saying this, but the Court is just using Kiobel as a vehicle to strike down the ATS in its entirety, or at least severely limit its scope, despite the fact that the case could have been decided on far narrower grounds.

This is a very unusual move for the Court, and it usually reserves the maneuver for times when it feels the need to completely shank a law that rubs it the wrong way.

For example, the Court did the same thing with Citizens United v. FEC.

Instead of ruling on the narrower grounds initially before it (on only one section of 2002’s Bipartisan Campaign Reform Act that dealt exclusively with time limits on the airing of political ads), the Court rescheduled the oral arguments for the following term, adding additional questions.

Those questions, just as in Kiobel, expanded the scope of the Court’s review to include whether two earlier Supreme Court decisions that upheld restrictions on corporate speech should be overruled.

The Court answered in the affirmative.

So why is the Court bothering to expand Kiobel’s scope?

There may be a number of explanations.

Perhaps the Court simply decided that the ATS oversteps Congress’s limits on its powers.

However, the Statute is 223 years old, and has withstood challenges before, so this reason alone likely isn’t the Court’s main motivator.

The reason, I suspect, for the Court’s decision is linked to the implications of a Kiobel decision as originally presented to the Court.

That is, this would-be decision (at least, if it came down as I had earlier predicted), would save corporations the massive headache of the costs and time (not to mention the bad press) associated with defending itself in U.S. courts against charges that they had engaged in crimes against humanity abroad.

The problem with this limited decision is that it could (and, indeed, would) still attach liability to individuals (say, for example, a corporate officer who had made the decision to have troops engage in kidnapping and torture).

This possibility would have become reality, had Kiobel been decided as originally presented, since plaintiffs in these ATS suits would be forced to turn their attention away from the corporate entities to the corporate officers.

The Roberts Court can’t have that.

So, come the Supreme Court’s 2012 term, the Alien Torts Statute will be effectively gutted.

Though the impact of the Kiobel decision will not be felt by the general public like that of Citizens United, the ideology that has driven the courses taken in both rulings are nearly identical.