It is the common thread that ties all of the otherwise seemingly diverse rulings and ideologies together: contempt for, or maybe fear of, freedom and equality before the law for what might be termed “ordinary” folk. This was on display in a unanimous ruling issued earlier this week in the case of Kiobel v. Royal Dutch Petroleum.
The statute at issue, 28 U.S.C. 1350 (known as the Alien Torts Statute) is a model of elegant clarity and simplicity from an earlier era, namely the era right around our nation’s founding:
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.
The one line statute gets clubbed to death in 35 pages of “statutory interpretation“, and eventually of course it winds up not meaning what it obviously says at all; indeed it more or less means nothing after the SCOTUS is through with it. Sort of like 42 U.S.C. 1983, which ostensibly deals with an entirely different sort of wrong but to the SCOTUS it’s the same issue: how to keep down the rabble in fly-over country and their ilk anywhere else in the world with the temerity to come into a federal court – a federal court! – making outrageous demands. Remember the scene from the Wizard of Oz when they finally get in to see the Wizard?
Bad Wizard, SCOTUS!
Technically, the issue in the Kiobel case is whether the statute can be applied to conduct occurring outside the United States. The obvious answer to that question is that this is precisely what the statute is for, and indeed it has no other intelligible purpose. How the SCOTUS winds up deciding the opposite is illustrative.
First, let’s stipulate to the legion of cases dealing with questions of statutory interpretation wherein it is said that if the statute has a plain meaning, no further interpretation should be done. The “plain meaning” thing is a favorite of conservatives in other contexts, such as when it makes a criminal defendant or a personal injury plaintiff or any other litigant who’s an individual going up against some institution lose; this time, however, the plain meaning of the statute favors the little against the big and so suddenly we don’t like “plain meaning” anymore. Now we get to “interpret” the statute, which means we can rationalize throwing the little guy out of court, which is what we want to do in the first place because: a) little people are messy and unappealing; and b) if we open the courthouse doors to them they’ll clog up our dockets with their silly little concerns – like in this case, oh, genocide – when we have important criminal cases brought by the government that we have to address.
So how is this “interpreting” done so that it doesn’t seem to be the thought process I just described even though that’s what it really is?
Well, they start with this “presumption” on the first page of the opinion:
“[w]hen a statute gives no clear indication of an extraterritorial application, it has none,”
One might think that it’s a pretty clear indication that a statute has “extraterritorial application” if, without it, it’s unintelligible and without purpose – and of course you are never supposed to interpret a statute out of existence, that’s another rule of “interpretation” -but never mind that for now.
As support for this “presumption” the SCOTUS can go all the way back to 1932 and a case called Blackmer v. United States, but since the linguistic formulation of the presumption in Blackmer isn’t quite good enough for our purposes here – which is to screw the little guy – we’ve changed it in our oh-so-clever SCOTUS fashion. See, Blackmer in referring to this presumption says: “… the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States…” and if you read that in context it’s not clear that the 1932 SCOTUS is setting up any kind of formal “presumption” at all; it’s probably just stating the obvious matter of factly.
But again, never mind. We have an agenda – remember? – screw the little guy.
So we go up to 1949 and now the off handed musings of the 1932 SCOTUS are formalized into a rule of interpretation, but of course intellectual honesty was more common then so they didn’t change the wording:
The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, supra, at 437, is a valid approach whereby unexpressed congressional intent may be ascertained.
That case is Foley Bros. v. Filardo.
Then we bring ourselves up to 1957 and the case of Benz v. Compania Naviera Hidalgo, and the language of the “canon of construction” has not been altered, but the 1957 SCOTUS adds by way of explaining itself further:
And so here such a “sweeping provision” as to foreign applicability was not specified in the Act. The seamen agreed in Germany to work on the foreign ship under British articles. We cannot read into the Labor Management Relations Act an intent to change the contractual 147*147 provisions made by these parties. For us to run interference in such a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed.
This language was dicta, summarizing the Court’s rationale not modifying the rule, but it sure came in handy as the Rehnquist SCOTUS began to come into its own in the 1990’s, with its barely disguised hostility to any ordinary-individual-initiated litigation, which apparently all belongs in small claims court, or maybe on Judge Judy, where the rabble can go and obtain whatever piddling relief they might deem themselves entitled to. I mean, who cares, right? We’ll let them sue each other. Gives them something to do.
But again, we can’t come right out and say things like that, so we do a little mixing and matching:
In applying this rule of construction, we look to see whether “language in the [relevant Act] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control.” Foley Bros., supra, at 285. We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Therefore, unless there is “the affirmative intention of the Congress clearly expressed,” Benz, supra, at 147, we must presume it “is primarily concerned with domestic conditions.” Foley Bros., supra, at 285.
The dicta of Benz gets combined with the rule of Foley Bros, and presto! The “presumption” has acquired that draconian strictness pressed mercilessly down upon the rabble for which the Rehnquist court, Lloyd Blankfein and Jamie Dimon have become so widely admired.
It was 1991 and the case was EEOC v. ARAMCO. That case dealt with the extraterritorial application of Title VII civil rights claims, a claim that would have failed under the older, less draconian formulation of the presumption anyway, but this is the Rehnquist SCOTUS and we’re really getting fond of applying really strict rules even when we don’t have to, as long as it permits us to tell the little guy ‘no’.
So now we’ve gone from 1932 musings, to a “rule of construction” and “presumption” by 1949 providing that “…unless a contrary intention appears…” US statutes do not apply extraterritorially to a tentative “..unless there is the affirmative intention of the Congress clearly expressed…” US statutes do not apply extraterritorially in 1991. And this becomes how we do things.
And then by 2010 some poor slob is trying to sue an Australian bank in the wake of all that bankster perfidy, and of course we can’t have the rabble suing banks because we have our “policies” doncha know that this will all be handled by some “Troika” or other, and by this time we have our rationale “well settled” even though it’s a pretty major deviation from the original idea in 1932, but anyway it’s really handy and ladies and gentlemen I give you Morrison v. National Autrailian Bank. And all the verbiage doesn’t really matter because the bottom line is, as it has been for so long now, that the bank wins and the little guy loses.
And so finally – and it had to come to this – the question becomes are we going to extend our illegitimate “presumption” so far that we will toss the rabble out of court even when the issue is human rights abuses under international law, which would seem to be specifically contemplated by the Alien Tort Statute when it mentions the “laws of nations”. Of course this means, and the Plaintiffs in Kiobel alleged, things like extrajudicial killings, crimes against humanity, torture, arbitrary arrest and detention, and so forth. The idea is that the international companies doing business (and having copious assets) both in Nigeria, where these things allegedly occurred, and the United States – to which the Plaintiffs fled and were in fact granted asylum – had a hand in these atrocities and by being forced to compensate the victims maybe they would think better of participating in such things and maybe even take some affirmative steps to ameliorate them, what with all the financial pressure of having to compensate victims and all.
In other words, this would be litigation having the salutary effects of compensating victims of human rights abuses and providing economic incentives to human rights abusers to stop being, well, human rights abusers. And we have lots of lawyers in this country that need good paying work and maybe this would be good paying work for them so you kill two birds with one stone.
But this is the SCOTUS, and so obviously such litigation cannot be permitted. This kind of thing is all handled by the State Department, just like financial institution corruption and wrongdoing is all handled by the Securities and Exchange Commission. That way everything truly ‘important’ gets run through Washington, important referring to any sizable amount of money changing hands, or anything coming within arguable range of some DC determined “policy” or other which increasingly means pretty much anything, period. Because Washington apparatchiks and wonks like Ilya Shapiro are really smart and they should run everything, along with the
morons prestigious economists at the Federal Reserve.
And I’ll just throw in that the SCOTUS is obviously wrong here. The Alien Tort Statute’s only discernible purpose is to authorize just the kind of lawsuit the Petitioners in Kiobel brought, that is, a tort occurring outside the US. Torts occurring inside the US are obviously cognizable in some state or federal court anyway, so the way they’re reading it the statute is purposeless nonsense. And, are they going to apply that same “presumption” the same way when the USG wants a criminal statute to have extraterritorial application?