But here, Scalia pounces. He wants to know of another American statute that applies on the high seas but not on foreign soil. You can see the strict-interpretation screws turning: Why should the court read one law in a way that’s at odds with all the other laws? Another snag for Sullivan: Among the sparse 18th century references to the Alien Tort Statute is a 1795 written opinion by Attorney General William Bradford, who offered the law as a remedy to a group of British subjects who said that a band of Americans, in cahoots with the French, had attacked their property on land in Sierra Leone. Bradford even mentioned “aiding and abetting,” which sounds like the collusion that Royal Dutch is accused of in Nigeria. Sullivan admits that the Bradford opinion “is the best thing the petitioners have.” It will be interesting to see what Scalia the originalist makes of this history in the final analysis.
Today, though, Scalia’s shoots his sharpest arrow at Solicitor General Donald Verrilli Jr. The solicitor general has executed an about-turn for the government: Last year, the Obama administration supported Kiobel’s claim. Now the government has switched sides. “Why should we listen to you as opposed to the other solicitors general?” Scalia asks.
Verrilli starts a long answer about how it’s his responsibility to balance the competing multiple interests of the United States. Scalia interrupts to point out that Verrilli’s predecessors had the same responsibility “and they took a different position.” Why should the court adopt Verrilli’s instead? “Because we think it’s persuasive, your honor,” Verrilli answers. This produces the first big laugh of the day. But I don’t think that actually boded well for Verrilli, whose position got mushier the more he tried to explain it. The government isn’t against every Alien Tort Statute suit, just the ones against corporations accused of aiding and abetting foreign governments, because those are the suits that foreign nations are highly sensitive to, the State Department says. Scalia asks if that means the courts will delineate categories of cases based on the say-so of the State Department—not a promising route, in his view. Justice Sonia Sotomayor jumps in to say, “I’m having trouble with this.”
And then Breyer, in his role today as the court’s moral conscience, brings the conversation back to the place where it began: Why shouldn’t corporations be held accountable for allegedly committing universally condemned human rights abuses? “What if the torture is done by hiring Torture Incorporated?”
Verrilli says that if Torture Inc. is directly doing the torturing, then yes, someone like Esther Kiobel could go ahead and sue under the statute. This is a concession because TortureInc. cannot be sued under the Torture Victim Protection Act, which Congress passed in 1991 expressly to allow for human rights suits against individuals.
OK, Breyer says next, now what if Torture Inc. is accused of “aiding and abetting” a nefarious dictator? Verrilli says no to this suit, because of the “risk of friction” that comes with subjecting the actions of a foreign government to scrutiny in the U.S. courts. That is the step that Esther Kiobel ultimately is asking our federal courts to take. That is what it means to be the court of last resort.
If that sounds like a lot to ask, consider the alternative, which Breyer raises by invoking Hitler, and Paul Hoffman underscores by closing with the image of “the modern-day equivalent to IG Farben.” In 1947, the United States tried 24 directors of the German chemical company, which was an engine of the Nazi war effort and manufactured the poison gas used in the concentration camps. Thirteen of the directors were held responsible for war crimes and crimes against humanity, and they went to prison. The case, tried at Nuremberg, is a reminder of the justice the United States has offered in the past for human rights violations on foreign soil. Maybe Esther Kiobel and her fellow plaintiffs won’t be able to prove anything like this against Royal Dutch Petroleum. But if the Supreme Court cuts them off before they can try, they won’t be the only ones who lose.