The Supreme Court on Monday afternoon took the unusual action of ordering reargument in the case heard last week that has been brought against a multinational oil corporation for aiding and abetting human rights violations in Nigeria.
The case, Kiobel v. Royal Dutch Petroleum, originally asked whether corporations can ever be held liable under a founding-era law, known as the Alien Tort Statute, that allows foreign nationals to bring civil suits in federal courts "for a tort only, committed in violation of the law of nations or a treaty of the United States." At oral argument last week, the Court's conservatives appeared ready to hold corporations immune from suit under the Alien Tort Statute despite the law's silence over the identity of potential defendants.
Monday's order, however, pushes aside the question of corporate liability to address a less politically explosive, but much more consequential question: whether any entity -- individual, state, corporation -- can be brought to justice in U.S. courts for abuses committed abroad.
Indeed, some of the same justices who seemed to side with Shell Oil's parent company also expressed deep skepticism over the extraterritorial scope of the Alien Tort Statute.
"The first sentence in your brief and the statement of the case is really striking: 'This case was filed by 12 Nigerian Plaintiffs who alleged that Respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship in Nigeria between 1992 and 1995,'" Justice Samuel Alito said to the plaintiffs' lawyer during last week's oral argument. "What business does a case like that have in the courts of the United States?"
That question, though, was not before the justices last week. In fact, mining giant Rio Tinto has submitted a petition to the justices in a similar case that asks the Court to take on the extraterritoriality issue.
Kiobel's corporate liability question, thus, created a quandary for the Court: If the justices were to rule for corporate immunity in Kiobel, then they would have to dispose of Rio Tinto on the same grounds -- and that would prevent the Court from taking on the broader question of the law's overseas reach.
Monday's order wriggles the Court out of that pickle while also serving to avert the public relations disaster that a ruling for corporate immunity would foist upon the Court, given its ruling two years ago in Citizens United that determined corporations were persons entitled to the First Amendment right to spend unlimited sums during political campaigns.
"No doubt part of this is the embarrassment of saying that corporations have constitutional rights but have no liabilities under constitutional law," Noah Feldman, a Harvard Law School professor, told HuffPost. "As one might have guessed from the oral argument, the justices want to go all the way to the question of whether the ATS should ever be used as a tool of human rights litigation."
Feldman, an international law expert, noted that the justices "were supposed to have decided that in 2004," when they first weighed in on the Alien Tort Statute to hold that federal courts had the power to hear cases stemming from certain crimes committed abroad, such as torture and genocide. That question is "back on the table," Feldman said, now that the conservative Justice Samuel Alito has replaced the moderate Justice Sandra Day O'Connor.
Briefing will be completed by the end of June. No reargument date has been set. The specific question the justices put to the parties is "[w]hether and under what circumstances the Alien Tort Statute ... allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States."
Try as they might to avoid the question of corporate personhood in Kiobel's new incarnation, the justices nevertheless will not be able to rid themselves of Citizens United's shadow. As it did in that case, the Court has, by its own volition, greatly expanded the scope of Kiobel to reach what will likely be a far more sweeping decision than originally anticipated.