Seven Ways of Looking at Kiobel v. Royal Dutch Petroleum and the Supreme Court Under Chief Justice John Roberts
As the dust settles from the end of the most recent Supreme Court term, the inevitable assessments of Chief Justice John Roberts have followed. Much has been made of the last week’s decisions on equality (or equal protection).
Undoubtedly, these decisions are significant and revealing. Roberts was able to forge a conservative consensus on the merits of the legal issue presented only in Shelby County v. Holder, in which the Court invalidated an important provision of the Voting Rights Act.
In the other decisions, involving gay rights and affirmative action, the Court either deferred addressing the merits or decided the case contrary to Roberts’ views. Thus, just how far right he will lead the Court remains to be seen.
This term nevertheless also provided perhaps the clearest snapshot of the Roberts Court in Kiobel v. Royal Dutch Petroleum, involving the scope of the Alien Tort Statute (“ATS”), a federal statute relied upon by lawyers asserting claims of human rights violations. In this article, I will explore how Kiobel fully illustrates the judicial philosophy of the Chief Justice.
In Kiobel, the Supreme Court unanimously affirmed a decision by the United States Court of Appeals for the Second Circuit dismissing a complaint filed under the ATS. The plaintiffs, residents of Nigeria when the events giving rise to the lawsuit occurred, sued three foreign corporations. (The defendants were a British oil company, a Dutch oil company, and their Nigerian subsidiary.) The plaintiffs claimed that the corporations aided and abetted human rights violations committed by the Nigerian government in response to protests against oil exploration in that region of Nigeria.
The Justices did not agree on why the plaintiffs’ case should be dismissed. Roberts wrote the Opinion of the Court, which held that the presumption against extraterritorial application of a federal law applies to the ATS and that the plaintiffs had not overcome this presumption. The Court’s other four conservative justices—Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito—joined Roberts’ decision.
Kennedy filed a brief concurring opinion, in which he stated that the Court “leave[s] open a number of significant questions regarding the reach and interpretation” of the ATS. Alito also filed a brief concurrence, joined by Thomas, in which he articulated a “broader standard” for the presumption against extraterritorial application: Only “domestic conduct” that is “sufficient to violate an international law norm that satisfies” the “requirements of definiteness and acceptance among civilized nations” set out in a prior Supreme Court decision will overcome the presumption, he wrote.
Justice Stephen Breyer wrote a concurrence joined by the Court’s liberal members—Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. He agreed with the result but not the reasoning of the Court’s Opinion. Breyer argued that the Court should “not invoke the presumption against extraterritoriality” but instead should hold that the ATS applies only in certain limited situations, including when “the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor . . . for a torturer or other common enemy of mankind.”
Separation of Powers
In the rest of this column, I will discuss the Court’s interpretation of the ATS only insofar as it illustrates Roberts’ judicial philosophy. (For a more detailed discussion of the doctrinal implications of Kiobel, see Michael Dorf’s column on Verdict that was posted shortly after the case was decided in April.)
The most significant insight to be gleaned from Roberts’s decision is his view of the separation of powers. This point actually has two parts, which are the first two ways of looking at the case:
(1) Separation of Powers I: The Political Branches. In Kiobel, Roberts adhered to a formalist understanding of separation of powers with respect to “international relations.” Congress and the President—who are directly elected by the people—develop policy. The judiciary interprets the law. The political branches lead, and the courts follow. Roberts’s reliance on the presumption against extraterritorial application allowed him to restate this view; he quoted from a prior Supreme Court decision that this presumption “helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
(2) Separation of Powers II: The Judiciary. Roberts has generally articulated a narrow—and passive—role for the judicial branch in constitutional government. Kiobel is entirely consistent with that view. His decision emphasized the doctrinal and institutional constraints on courts. This is evident in, for example, his discussion of the Court’s prior decision on the ATS, Sosa v. Alvarez-Machain. Roberts consistently downplayed the fact that the Court in Sosa held, as Breyer noted, that “today’s federal judges” have “the power to fashion ‘a cause of action’ for a ‘modest number’” of claims under the ATS.
(3) Restricting Access to the Federal Courts. A recurring theme in Roberts’s jurisprudence is his efforts to make it more difficult for litigants to sue. This point combines his understanding of the judicial branch with procedural doctrine, particularly the issue of standing—that is, who may bring a lawsuit. (Roberts invoked standing in Hollingsworth v. Perry, in which the Court dismissed the lawsuit over Proposition 8 in California.) Although Kiobel did not present a standing issue, it nevertheless limits the availability of the federal courts to adjudicate cases brought under the ATS.
(4) Protecting Corporations. A corollary of the preceding point is that Kiobel is a pro-business decision. The Roberts Court consistently has upheld or protected the interest of corporate defendants. Kiobel delivers that result by dismissing a case filed against three corporations.
Politics on the Supreme Court
(5) Divergent Conservative Views. With the replacement of Justice Sandra Day O’Connor by Justice Alito in 2006, the Court has shifted to the right politically. Interestingly, perhaps because of ideological or generational differences, the Court’s conservatives now speak with a number of different voices. In Kiobel, the concurring opinions highlighted these differences. Kennedy emphasized that the Court’s decision was narrow, suggesting that he was not enthusiastic about limiting the scope of the ATS. Alito, by contrast, provided the most restrictive interpretation of the statute in any of the decisions.
(6) An Exercise in Judicial Minimalism. In Kiobel, Roberts occupied the middle ground on the right, in large part by not specifying the circumstances in which a plaintiff suing under the ATS may overcome the presumption against extraterritorial application. (All the Chief Justice said in the last part of his decision was that claims under the ATS must “touch and concern the territory of the United States” with “sufficient force to displace the presumption.”)
Roberts’s approach can be understood in at least two ways. First, his decision may be seen as an exercise in judicial minimalism—the practice of deciding cases narrowly in accordance with a modest understanding of the Court’s role in a constitutional democracy.
(7) Or Planting the Seeds for the Next Case? There is a second, more Machiavellian way, to view what Alito described as Roberts’ “narrow approach” in Kiobel. Adam Liptak of the The New York Times recently described Roberts’s “patient and methodical approach” to establishing “a robustly conservative record.” In particular, Liptak noted, Roberts has been “adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.”
In Kiobel, Roberts may have applied this strategy with Kennedy. In the last part of the decision, as noted earlier, Roberts tempered the force with which he reined in the reach of the ATS. This part may have been necessary to secure Kennedy’s vote. It also guarantees that Roberts’s decision will provide the framework for the Court’s next decision on the ATS.
Quite likely, it is that next decision that will more precisely determine the future of the statute. As it turns out, there is at least one case on the Court’s docket for the next term that involves claims brought under the ATS—DaimlerChrysler A.G. v. Bauman.
The question presented in DaimlerChrysler is whether a court may exercise personal jurisdiction over a “foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf” of that defendant corporation in the State where the lawsuit is brought. This jurisdictional question will provide the Court with another opportunity to decide whether claims under the ATS may be asserted in a federal court when the conduct complained of occurred outside the United States—and to show the extent to which it is truly the Roberts Court.