The Supreme Court’s decision in CISCO Systems, Inc. v. Doe, announced on June 23, was not only, as expected, good news for corporations that facilitate government violations of international human rights. It was also an unexpected boon for government officials who do so as well. Courtesy of the court’s ruling, both corporations and officials are now no longer subject to civil suits under the Alien Tort Statute, even if they engage in torture, extrajudicial murder, slavery, genocide, crimes against humanity, or prolonged arbitrary detention.
The case arose out of China’s brutal persecution of Falun Gong, a spiritual group that the government has termed “an evil cult.” As has been widely documented, that persecution has involved torture, disappearance, and prolonged arbitrary detention in “reeducation camps” – all core violations of customary international human rights. The plaintiff Falun Gong members alleged that critical to this persecution was an agreement between Chinese authorities and CISCO Systems, under which the corporation provided mass surveillance technology that enabled the identification of Falun Gong practitioners. The Supreme Court granted review on the issue of whether under current Supreme Court precedent, the ATS permitted suit against a domestic corporation responsible for the offense of “aiding and abetting” egregious human rights violations by governments such as China.
Enacted by the First Congress in 1789, the ATS in its current version states that, “The district courts shall have original jurisdiction of 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.” Dormant for almost 200 years, the ATS was revived in 1980 as a tool for modern international human rights litigation. Early cases typically involved suits by aliens against officials of authoritarian foreign governments. A later generation of ATS cases involved multinational corporations accused of aiding and abetting state human rights violations.
The precedent that should have framed the court’s Cisco analysis was the first ATS case it had ever considered. That 2004 decision, Sosa v. Alvarez-Machain, considered the objection that the ATS was merely a jurisdictional statute, giving the courts the power to hear a case. Nowhere, as is the current rule, did Congress provide for a cause of action, authorizing persons to actually commence a lawsuit.
In a rigorously historical opinion by Justice David Souter, the court rejected this challenge. It rightly noted that in the common law world of the late 18th century, the First Congress would have expected that the federal courts would use a grant of jurisdiction as a go-ahead to allow persons to bring a lawsuit. Critically, he also argued that causes of action based upon “the law of nations” necessarily evolved (witness its modern label, customary international law). For guidance, Souter reasoned that any modern causes of action that judges might create had to reflect key features that characterized the three causes of action recognized in the late 18th century: piracy, assaults on ambassadors, and violations of a state’s guarantee of “safe conduct” to foreigners passing through its jurisdiction.
Sosa’s guidelines meant that any modern causes of action first had to command a near consensus of the world’s nations, a basic requirement of customary international law, and, second, that any new cause of action had to be based on a norm that could be articulated with a degree of specificity. Among other things, the Sosa test meant that the most heinous violations of international human rights law, such as torture, slavery, and prolonged arbitrary detention, could go forward.Why? Each of these reflected a consensus of the world’s nations and had also come to be defined with reasonable precision.
Sosa, however, did not stop a court increasingly skeptical of domestic and international rights from chipping away at the ATS in subsequent encounters. In Kiobel v. Royal Dutch Petroleum Co., the court held that the ATS did not overcome the presumption that federal statutes do not apply to violations that occur beyond the borders of the United States. And in Jesner v. Arab Bank, PLC, it ruled that victims of human rights violations could not sue foreign corporations. But these cases left unaddressed one further point of attack: did the ATS permit victims to bring suit against domestic corporations or private parties who “aided and abetted” state human rights violations?
Enter CISCO Systems. In a by now familiar six to three vote, the court said more than no. In a move more shocking than surprising, it reached beyond the question on which review was granted, and instead overruled Sosa altogehter, or just about. The only causes of action the majority left open were the three that existed in the late 18th century. This strips away any accountability even for torture, state murder, slavery, and genocide.
Justice Amy Coney Barrett’s short and correspondingly thin opinion offers two basic reasons for “closing the door” that Sosa opened. To begin, she mischaracterizes Sosa’s second step. This called for courts to assess whether a universal human rights standard, such as prolonged arbitrary detention, had a reasonably specific definition. Barrett, instead, asserts that the second step required courts to “assess the ‘practical consequences’ of creating new liability under the ATS, including the ‘risks of adverse foreign policy consequences.’”
Applying the mischaracterization, the opinion declares that recognizing aiding and abetting will always risk adverse foreign policy consequences. This conclusion appears to follow because recognizing an international norm that by definition commands a consensus would, according to the majority, be detrimental to U.S. foreign policy; in part because aiding and abetting by a U.S. corporation would often involve a foreign state human rights violator, and in part out of a concern for “unwarranted judicial interference in the conduct of foreign policy.”
Additionally, Barrett reasserts the modern rule that the power to create causes of action belongs to Congress, full stop. That branch, she writes, is simply better placed to evaluate the tradeoffs of creating liability as a matter of separation of powers.
As in previous ATS cases, Justice Sonia Sotomayor dissented. First, she argues that applying Sosa would require recognizing aiding and abetting. Curiously, she accepts the majority’s characterization that one of Sosa’s two steps mandates a judicial assessment of foreign policy consequences. But she rejects the majority’s assertion that aiding and abetting liability will always have adverse consequences for U.S. foreign policy. Instead, she sensibly argues that the issue should be taken on a case-by-case basis. Sometimes permitting suits against corporations for facilitating human rights violations might undermine the nation’s foreign affairs commitments, but often they will not.
To prove the point, Sotomayor offers ample evidence showing that holding private parties, including U.S. corporations, accountable for aiding and abetting Chinese human rights violations fully accords with the U.S. government’s repeated condemnations of exactly those violations. Allowing suits against a U.S. corporation like Cisco Systems for China’s persecution of Falun Gong would support, rather than undermine, established U.S. foreign policy. Returning to Sosa as written, she also correctly applies Souter’s first step. Aiding and abetting for serious human rights violations, she notes, in fact commands a near universal international consensus.
But the dissent rightly reserves most of its firepower for the overrule of Sosa. For starters, it notes that the majority barely acknowledges that it is formerly discarding that case. Still less does the majority apply all the usual criteria for an overrule, such as whether the former decision is unsound in principle, unworkable in practice, had been widely relied upon, or has been subject to a significant change in background circumstances. All told, Cisco Systems demonstrates that in foreign affairs cases, too, the greater this court’s disregard for stare decisis, the lesser the justification. (Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade is one such example; this term’s Louisiana v. Callais supposedly “updating” prior approaches to the Voting Rights Act is another.)
But most importantly, Sotomayor is at pains to show that Sosa was nothing if not sound. In contrast to the majority, she offers a plethora of historical material supporting Sosa’s key insight that the First Congress fully expected that a grant of jurisdiction to the federal courts to hear tort suits involving violations of customary international law would mean they would fashion an appropriate cause of action for such violations. The First Congress made the foreign policy determination by legislating that such suits should go forward without qualification. Consequently, it is not a little ironic for the court to inject itself into second guessing foreign policy assessments that Congress has already made out of concern for “unwarranted judicial interference in the conduct of foreign policy.”
In that vein, and contrary to Barrett in this case, Sosa did not elevate the power of the courts over Congress. Rather, the central point of Souter’s careful research in Sosa was that it was precisely the expectation of the First Congress that the courts would fashion causes of action based upon evolving customary international law. In other words, Sosa’s formulation applies, rather than usurps, Congress’ intent.
Ultimately, Cisco Systems should be remembered for a near total judicial repeal of the ATS by a gratuitous overruling of Sosa. To get there, the court, among other things, mischaracterized the precedent it overturned, failed to acknowledge that it was overturning it, and ignored most of the limitations mandated by stare decisis. Moreover, an ordinarily originalist majority often obsessed with the history of the founding era completely disregarded the statute’s historical context.
Yet far more important will be the result. For decades, ATS litigation gave victims of the most egregious forms of persecution one of the few possibilities of holding the perpetrators to some measure of account. Recent global developments, from Ukraine to the Middle East, have led to increasing concerns about the decline of the post-World War II international order, not least systemic and unaddressed human rights violations. With Cisco Systems, the Supreme Court has done its part to hasten the process.
