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06/18/2021

Three Not Very Interesting Cases from the Supreme Court
Michael Ramsey

Yesterday the Supreme Court decided three closely watched cases, Fulton v. City of Philadelphia (religious liberty), Nestlé USA, Inc. v. Doe I (Alien Tort Statute), and California v. Texas (Obamacare again). Sadly, or perhaps fortunately, none produced consequential results.  Ed Whelan at NRO Bench Memos has a good overview of the first two here and here.  At Volokh Conspiracy, Jonathan Adler, Josh Blackman, Ilya Somin, and Eugene Volokh have more.

In California v. Texas, the Court (7-2) found no standing.  I don't really have an originalist perspective on that conclusion, though it seems to me that states suing to vindicate what are effectively individual rights is an odd invocation of the judicial power.

In Fulton, the important question was whether the Court would uphold or overrule Oregon v. Smith, Justice Scalia's key 1990 case restricting the scope of free exercise claims, which has been sharply criticized on originalist grounds.  The Court gave no answer; the majority found the claimants won even under the Smith test, while the concurring opinions debated Smith's future. As Ed Whelan summarizes:

In a three-paragraph concurring opinion, Justice Barrett offers her view that the “textual and structural arguments against Smith are more compelling” than the historical arguments against it. But, asking “what should replace Smith?” if it were to be overruled, she says that she is “skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime.” Justice Kavanaugh joined Barrett’s opinion in full. Justice Breyer joined two of its paragraphs, but not the one expressing doubts about the correctness of Smith.

In a 77-page opinion concurring in the judgment ... Justice Alito, joined by Justices Thomas and Gorsuch, calls for Smith to be overruled and laments that the Court has instead “emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” ...

As to what should replace Smith, Alito responds:

The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.

In his own concurrence in the judgment, Gorsuch, joined by Thomas and Alito, criticizes the majority for a “dizzying series of maneuvers” that enable it to avoid addressing Smith.

Overall, there would appear to be at least five justices ready (Thomas, Alito, and Gorsuch) or disposed (Barrett and Kavanaugh) to overturn Smith. But Barrett and Kavanaugh are not yet confident what rules should replace Smith.

In Nestlé (a case in which I joined an amicus brief supporting petitioners) the key question was whether the Court would return the Alien Tort Statute (ATS) to something like its original meaning.  The answer was that the Court would continue to equivocate.  Here's Ed Whelan's summary of the main opinions:

1. In Part II of Justice Thomas’s lead opinion joined by seven other justices (all but Justice Alito), the Court holds that the plaintiffs are improperly seeking extraterritorial application of the ATS. “Nearly all the conduct that [plaintiffs] say aided and abetted forced labor … occurred in Ivory Coast.” While they pleaded that every major operational decision was made in or approved in the United States, “allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.”

2. Justice Thomas, joined by Justices Gorsuch and Kavanaugh, argues in Part III of his opinion that the federal courts should not create private rights of action under the ATS for violations of international law beyond the three historical torts that the Court identified in its 2004 ruling in Sosa v. Alvarez-Machain—namely, violation of safe conducts, infringement of the rights of ambassadors, and piracy. The creation of any other causes of action should be left to Congress. (Gorsuch, joined by Kavanaugh, elaborates on this point in a separate concurrence.) ... [There was also a concurrence by Justice Sotomayor and a dissent by Justice Alito.]

I think Justice Thomas is sort of right (as an original matter) in Part III. Federal courts should not create federal causes of action under the ATS.  The ATS is just a jurisdictional statute, as its plain language makes clear. ("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.")  So the plaintiffs/respondents, who sought a federal cause of action, rightly lost. 

But the fact that plaintiffs lack a federal cause of action shouldn't mean there isn't federal jurisdiction.  There obviously is federal jurisdiction -- if not under the ATS, then under diversity jurisdiction (plaintiffs are aliens and the defendants are U.S. corporations).  The decisive question ought to be whether the plaintiffs have a cause of action from some non-federal source,  such as state law or foreign law.    (I discussed this approach more in a post at Just Security last December.)

It's disappointing that no one on the Court wants to focus on this point, because it would make ATS cases conceptually much easier (and restore something like the original meaning).  Instead, the Court continued to pursue the idea of an extraterritoriality limit on the ATS, which still seems wrong to me.  No one thinks the diversity jurisdiction statute has an extraterritoriality limit, so why should we think the ATS has one?  Plus the Court's focus on extraterritoriality implies that courts might be able to create federal causes of action under the ATS for territorial torts, though in fact I doubt there are five Justices who actually think that.

So in short, three cases that don't resolve anything important.