Yesterday’s Supreme Court decision in Cisco Systems v. Doe sharply limited the scope of the Alien Tort Statute (ATS), which was originally passed in 1789 but rarely invoked before the late 20th century (SCOTUSblog summary here). From Justice Barrett’s majority opinion:
In Sosa v. Alvarez-Machain [in 2004], we held that the ATS does not permit a court to create a cause of action for arbitrary detention in violation of international law. 542 U. S., at 699, 736–738. In so holding, we stressed that “the ATS is a jurisdictional statute creating no new causes of action.” Id., at 724. At the same time—and in considerable tension with the first point—we said that the ATS allows for the possibility of new, judicially created causes of action to enforce norms of international law. Id., at 724–725.
To justify this conclusion, Sosa reasoned that the First Congress would not have expected the ATS to “l[ie] fallow” until Congress or state legislatures enacted causes of action for violations of the law of nations. Id., at 719. Law-of-nations offenses formed part of “the ambient law of the era,” and some “were understood to be within the common law.” Id., at 714, 720. William Blackstone’s legal treatise discussed three: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Id., at 715 (citing 4 Commentaries on the Laws of England 68 (1769)). Given this history, Sosa “assume[d] that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations.” 542 U. S., at 724. But Sosa “found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses.” Ibid. And it acknowledged that when the ATS was enacted, no one would have understood the statute as a grant of authority to create causes of action. Id., at 725–726. Nonetheless, Sosa asserted that courts have very modest authority to create causes of action under the ATS for violations of international norms.
Justice Barrett then concludes that the Sosa Court was wrong to suggest that courts could create ATS causes of action beyond the “Blackstone three” (assaults on ambassadors, violations of safe conducts and piracy).
In sum, we close the door that Sosa cracked to judicially created ATS liability. We do not disturb Sosa’s holding that the ATS is a jurisdictional statute; nor do we revisit its assumption that causes of action are available for torts corresponding to the Blackstone three. We conclude only that Sosa was overly optimistic in its prediction that there might be a narrow class of cases in which courts may create ATS actions without infringing on the prerogatives of the political branches. In truth, this class is a null set.
What result for this case? Cisco argues that the Ninth Circuit erred in holding that aiding-and-abetting liability exists under the ATS for the torts alleged by the plaintiffs. Cisco is correct. Courts cannot create new rights of action to remedy violations of international law, so there is necessarily no liability for aiding and abetting such violations.Plaintiffs’ ATS claims against Cisco must be dismissed.
As Justice Barrett notes, this conclusion adopts Justice Scalia’s view in Sosa (concurring in the judgment, though really a dissent). So another Scalia position is vindicated.
My view is a little different, but not substantially different as a practical matter. The ATS is only a jurisdictional statute. Courts with jurisdiction can entertain causes of action from existing applicable law, but they can’t make up their own law. That applies to the “Blackstone three” as well. But since the Blackstone three don’t have much relevance in modern law, the Cisco majority gets mostly back to the original meaning.
Going forward, the question is whether plaintiffs are able to restate what would have been ATS causes of action (now precluded by Cisco) as causes of action under state law or foreign law. I don’t think anything in Cisco precludes that course, though there may be other obstacles (as discussed preliminarily here).
Posted at 6:15 AM