On Monday, the Supreme Court heard oral argument in one of the biggest human rights cases to reach the court in years. I was inside the courtroom, and had the privilege of hearing my friend and colleague, Paul Hoffman, brilliantly defend the Alien Tort Statute, which for thirty years has allowed victims of egregious human rights violations to sue those responsible, when they are found here in the United States.
The case at hand, Kiobel v. Royal Dutch Shell, accuses Shell Oil of complicity in human rights abuses against those who opposed its shameful environmental practices in the Ogoni region of Nigeria.
In February, the court heard a first round of oral argument, ostensibly on the question of whether corporations can be sued at all for complicity in human rights abuses under the Alien Tort Statute. Shell's position was that it could not be held liable, no matter how illegal or universally prohibited its acts, simply because it is a corporation.
But much of the argument in February focused on a different assertion made by Shell's allies -- that the ATS does not apply to claims arising abroad. Since the plaintiffs had no opportunity to address that issue, the court ordered rebriefing and reargument.
The second argument was on Monday, and we felt that it went well. The court did not seem willing to overturn its own precedent, set in Sosa v. Alvarez-Machain just eight years ago, to find that the ATS does not apply abroad. Justice Kagan actually read from the Sosa opinion, reminding us that yesterday's pirate is the modern-day torturer, and our courts should keep the doors open to victims of these kinds of universally condemned human rights abuses.
Shell's lawyer, Kathleen Sullivan, continued to take extreme positions, but they did not seem to gain much traction. Sullivan has been ridiculed for her insistence at the original Kiobel argument that a corporation that committed piracy -- the proverbial "Pirates, Inc." -- could not be held responsible.
This time, she doubled down on that position. According to Sullivan, not only could Pirates, Inc. not be sued, but actual pirates could not be sued either, because the ATS does not extend to any claims outside the United States. Shell's position was that the seminal Filártiga v. Peña-Irala, which began modern U.S. human rights litigation and which the Supreme Court has previously approved, was wrongly decided. She gave no ground on the position that the ATS should not apply to any acts outside the United States, period, and that relentless position didn't seem to go over well with the Court.
The U.S. government, represented by Solicitor General Donald Verrilli, did not fare much better. While the government supported the plaintiffs in February, arguing that corporations are not immune, they argued this time that the ATS should not apply to foreign corporations that abet abuses abroad. Thus, as the government sometimes does, it took a very narrow position in this case -- arguing that this particular case against Shell should not proceed, but not really explaining the principles by which courts should determine whether other cases should proceed.
The justices pointed out that prior U.S. administrations had taken different positions, and so that might diminish the persuasiveness of the government's argument. Throughout his allotted time, Verrilli wouldn't give a clear answer on whether a case like Kiobel should proceed if the defendant were a U.S. company, which renders the U.S. government's position pretty unhelpful to the Court.
It was great to hear Paul champion the cause of human rights in front of the Supreme Court. He was able, several times, to remind everyone why this case was being heard at all: Victims of serious human rights abuses were seeking justice in a court of law, and the ATS was the tool that allowed them to do that.
I swear the entire court was silenced when, in his rebuttal, he described a hypothetical case about an Iranian company producing poison gas, which it sells to the Assad regime in Syria. That gas is then used to kill and maim Syrian citizens, some of whom manage to gain refugee status here in the U.S. and learn that the same Iranian company is doing business in their new homeland.
Hoffman: "Would it really be the case that the Alien Tort Statute should not apply to a claim of aiding and abetting the Assad regime and murdering tens of thousands of its people?"
It was devastating to Shell's position. I had to resist the urge to jump up and applaud.
It's always hard to predict what the Supreme Court will do based on oral argument. But Shell's extreme position seemed to have few if any friends on the bench, and the government's confusing position didn't help. Sometime between now and June we'll learn what the justices were really thinking on Monday.
Win or lose, though, I was incredibly heartened to hear a number of plaintiffs say that for them to have their case heard at the U.S. Supreme Court was already a major victory. One after another they said that, during the time they were suffering the abuses that formed the basis of the lawsuit, they could never have imagine a moment like Monday. They were so pleased and proud to see that day. I was humbled, and reminded of what a privilege it is to be a part of their struggle for justice.
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