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ATS Originalism from Justice Gorsuch
Michael Ramsey

Jesner v. Arab Bank, decided by the Supreme Court yesterday, rejected a claim under the Alien Tort Statute (ATS) by foreign plaintiffs against a foreign bank.  (SCOTUSblog analysis here).  Justice Gorsuch wrote an opinion concurring in part and concurring in the judgment, focused on the original meaning to the ATS and Article III of the Constitution.  I'm happy to say his analysis is similar to the approach I took in a post on the case for the Just Security blog (see also here, on this blog).  The basic argument is that the original meaning of Article III did not allow suits between alien plaintiffs and alien defendants where no federal question existed; at the time of enactment, no one would have understood a federal question to exist in Jesner because (a) the ATS is only jurisdictional and does not itself create a federal cause of action, and (b) courts acting pursuant to the ATS would have been understood to be applying general common law, which (in the eighteenth century) was not understood as federal law.

Here's Gorsuch's analysis (from Part II, footnotes omitted):

Respectfully, I do not think the original understanding of the ATS or our precedent permits federal courts to hear cases like this [involving foreign plaintiffs and foreign defendants]. At a minimum, both those considerations and simple common sense about the limits of the judicial function should lead federal courts to require a domestic defendant before agreeing to exercise any Sosa-generated discretion to entertain an ATS suit.

Start with the statute. What we call the Alien Tort Statute began as just one clause among many in §9 of the Judiciary Act of 1789, which specified the jurisdiction of the federal courts. 1 Stat. 76–78. The ATS clause gave the district courts “cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”  Like today’s recodified version, 28 U. S. C. §1350, the original text of the ATS did not expressly call for a U. S. defendant. But I think it likely would have been understood to contain such a requirement when adopted.

That is because the First Congress passed the Judiciary Act in the shadow of the Constitution. The Act created the federal courts and vested them with statutory authority to entertain claims consistent with the newly ratified terms of Article III. Meanwhile, under Article III, Congress could not have extended to federal courts the power to hear just any suit between two aliens (unless, for example, one was a diplomat). Diversity of citizenship was required. So, because Article III’s diversity-of-citizenship clause calls for a U. S. party, and because the ATS clause requires an alien plaintiff, it follows that an American defendant was needed for an ATS suit to proceed.

Precedent confirms this conclusion. In Mossman v. Higginson, 4 Dall. 12, 14 (1800), this Court addressed the meaning of a neighboring provision of the Judiciary Act. Section 11 gave the circuit courts power to hear, among other things, civil cases where “an alien is a party.” 1 Stat. 78. As with §9, you might think §11’s language could be read to permit a suit between aliens. Yet this Court held §11 must instead be construed to refer only to cases “where, indeed, an alien is one party, but a citizen is the other.” Mossman, 4 Dall., at 14 (internal quotation marks omitted). That was necessary, Mossman explained, to give the statute a “constructio[n] consistent” with the diversityjurisdiction clause of Article III. Ibid. And as a matter of precedent, I cannot think of a good reason why we would now read §9 differently than Mossman read §11. Like cases are, after all, supposed to come out alike. See Sarei v. Rio Tinto, PLC, 671 F. 3d 736, 828 (CA9 2011) (Ikuta, J., dissenting) (“Mossman’s analysis [of §11] is equally applicable to [§9]. . . . ATS does not give federal courts jurisdiction to hear international law claims between two aliens”), vacated and remanded, 569 U. S. 945 (2013).

Nor does it appear the ATS meant to rely on any other head of Article III jurisdiction. You might wonder, for example, if the First Congress considered a “violation of the law of nations” to be a violation of, and thus “arise under,” federal law. But that does not seem likely. At the founding, the law of nations was considered a distinct “system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world,” 4 Blackstone 66. While this Court has called international law “part of our law,” The Paquete Habana, 175 U. S. 677, 700 (1900), and a component of the “law of the land,” The Nereide, 9 Cranch 388, 423 (1815), that simply meant international law was no different than the law of torts or contracts—it was “part of the so-called general common law,” but not part of federal law. Sosa, 542 U. S., at 739–740 (opinion of Scalia, J.). See Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 824, 849–850 (1997); see also Young, Sorting Out the Debate Over Customary International Law, 42 Va. J. Int’l L. 365, 374–375 (2002).

Gorsuch goes on to  point out that admiralty and maritime claims (especially piracy) and assaults on ambassadors -- two situations in which the founding generation likely was concerned about alien-versus-alien suits -- are covered by other provisions of the 1789 Judiciary Act.  I would add that other alien-versus-alien suits weren't foreclosed altogether; they just had to proceed in state court rather than federal court, as the Supreme Court said in Mossman.  The design of Article III strongly indicates that the framers were comfortable with keeping alien-versus-alien suits in state court, apart from the special cases of admiralty/maritime suits and suit affecting ambassadors.  Had they thought otherwise, they easily could have included alien-versus-alien claims in the section of Article III establishing diversity jurisdiction.

RELATED:  I joined an amicus brief of International Law and Foreign Relations Law scholars in support of Arab Bank, making the broader point that allowing suits of this type runs counter to the original purposes of the ATS.  Justice Alito cited the brief in his concurrence.  Congratulations to Samuel Estreicher (NYU), the principal author of the brief.