Jesner v. Arab Bank, PLC

JUSTICE GORSUCH, concurring in part and concurring in the judgment.¶

I am pleased to join the Court’s judgment and Parts I, II–B–1, and II–C of its opinion. Respectfully, though, I believe there are two more fundamental reasons why this lawsuit must be dismissed. A group of foreign plaintiffs wants a federal court to invent a new cause of action so they can sue another foreigner for allegedly breaching international norms. In any other context, a federal judge faced with a request like that would know exactly what to do with it: dismiss it out of hand. Not because the defendant happens to be a corporation instead of a human being. But because the job of creating new causes of action and navigating foreign policy disputes belongs to the political branches. For reasons passing understanding, federal courts have sometimes treated the Alien Tort Statute as a license to overlook these foundational principles. I would end ATS exceptionalism. We should refuse invitations to create new forms of legal liability. And we should not meddle in disputes between foreign citizens over international norms. I write because I am hopeful that courts in the future might pause to consider both of these reasons for restraint before taking up cases like this one. Whatever powers courts may possess in ATS suits, they are powers judges should be doubly careful not to abuse.¶

I¶

First adopted in 1789, the current version of the ATS provides that “[t]he 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.” 28 U. S. C. §1350. More than two hundred years later, the meaning of this terse provision has still “proven elusive.” Sosa v. Alvarez-Machain , 542 U. S. 692, 719 (2004). At the same time, this Court has suggested that Congress enacted the statute to afford federal courts jurisdiction to hear tort claims related to three violations of international law that were already embodied in English common law: violations of safe conducts extended to aliens, interference with ambassadors, and piracy. Id. , at 715; 4 W. Blackstone, Commentaries on the Laws of England 68 (1769) (Blackstone); see also Bellia & Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011) (arguing that the ATS meant to supply jurisdiction over a slightly larger set of claims involving intentional torts by Americans against aliens).¶

In this case, the plaintiffs seek much more. They want the federal courts to recognize a new cause of action, one that did not exist at the time of the statute’s adoption, one that Congress has never authorized. While their request might appear inconsistent with Sosa ’s explanation of the ATS’s modest origin, the plaintiffs say that a caveat later in the opinion saves them. They point to a passage where the Court went on to suggest that the ATS may also afford federal judges “discretion [to] conside[r] [creating] new cause[s] of action” if they “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the [three] 18thcentury” torts the Court already described. 542 U. S., at 725.¶

I harbor serious doubts about Sosa ’s suggestion. In our democracy the people’s elected representatives make the laws that govern them. Judges do not. The Constitution’s provisions insulating judges from political accountability may promote our ability to render impartial judgments in disputes between the people, but they do nothing to recommend us as policymakers for a large nation. Recognizing just this, our cases have held that when confronted with a request to fashion a new cause of action, “separation-of-powers principles are or should be central to the analysis.” Ziglar v. Abbasi , 582 U. S. ___, ___ (2017) (slip op., at 12). The first and most important question in that analysis “is ‘who should decide’ . . . , Congress or the courts?” and the right answer “most often will be Congress.” Ibid. Deciding that, henceforth, persons like A who engage in certain conduct will be liable to persons like B is, in every meaningful sense, just like enacting a new law. And in our constitutional order the job of writing new laws belongs to Congress, not the courts. Adopting new causes of action may have been a “proper function for common-law courts,” but it is not appropriate “for federal tribunals” mindful of the limits of their constitutional authority. Alexander v. Sandoval , 532 U. S. 275, 287 (2001) (internal quotation marks omitted).¶

Nor can I see any reason to make a special exception for the ATS. As Sosa initially acknowledged, the ATS was designed as “a jurisdictional statute creating no new causes of action.” 542 U. S., at 724; accord, ante, at 8 (majority opinion). And I would have thought that the end of the matter. A statute that creates no new causes of action . . . creates no new causes of action. To the extent Sosa continued on to claim for federal judges the discretionary power to create new forms of liability on their own, it invaded terrain that belongs to the people’s representatives and should be promptly returned to them. 542 U. S., at 747 (Scalia, J., concurring in part and concurring in judgment). 1¶

But even accepting Sosa ’s framework does not end the matter. As the Court acknowledges, there is a strong argument that “a proper application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS.” Ante, at 19. I believe that argument is correct. For the reasons just described, separation of powers considerations ordinarily require us to defer to Congress in the creation of new forms of liability. This Court hasn’t yet used Sosa ’s assertion of discretionary authority to recognize a new cause of action, and I cannot imagine a sound reason, hundreds of years after the statute’s passage, to start now. For a court inclined to claim the discretion to enter this field, it is a discretion best exercised by staying out of it.¶

The context in which any Sosa discretion would be exercised confirms the wisdom of restraint. Sosa acknowledged that any decision to create a new cause of action would “inevitably [involve] an element of judgment about the practical consequences” that might follow. Id., at 732733. But because the point of such a claim would be to vindicate “a norm of international character,” id. , at 725, those “practical consequences” would likely involve questions of foreign affairs and national security—matters that implicate neither judicial expertise nor authority. It is for Congress to “define and punish . . . Offences against the¶

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1 The dissent claims that Congress’s decision to give federal courts “jurisdiction over claims based on ‘the law of nations,’ ” necessarily implies the authority to develop that law. Post , at 16. That does not follow. Federal courts have jurisdiction over all kinds of cases—for example, those arising under the law of torts or contracts. Yet following our decision in Erie R. Co. v. Tompkins , 304 U. S. 64 (1938), federal courts are generally no longer permitted to promulgate new federal common law causes of action in those areas. Id. , at 75. I can see no reason to treat the law of nations differently. See Sosa v. AlvarezMachain , 542 U. S. 692, 744–746 (2004) (Scalia, J., concurring in part and concurring in judgment).¶

Law of Nations” and to regulate foreign commerce. U. S. Const., Art. I., §8. And it is for the President to resolve diplomatic disputes and command the armed forces. Art. II, §§2–3. Foreign policy and national security decisions are “delicate, complex, and involve large elements of prophecy” for which “the Judiciary has neither aptitude, facilities[,] nor responsibility.” Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp. , 333 U. S. 103, 111 (1948) (Jackson, J.). And I find it difficult to imagine a case in which a federal court might safely conclude otherwise. Take this very lawsuit by way of example. The Kingdom of Jordan considers it to be “a ‘grave affront’ to its sovereignty,” and the State Department worries about its foreign policy implications. Ante, at 26. Whether American interests justify the “practical consequence” of offending another nation in this way (or in worse ways yet) is a question that should be addressed “only by those directly responsible to the people whose welfare” such decisions “advance or imperil.” Waterman S. S. Corp. , supra, at 111. So while I have no quarrel with the dissent’s observation, post, at 15–16, that lower federal courts are not free to overrule Sosa ’s framework or treat it as optional, I do know that the analysis Sosa requires should come out the same way in virtually every case. If Sosa is right—and I am sure it is—that federal courts must “inevitably” exercise “an element of judgment” about delicate questions of foreign affairs when deciding whether to create a new cause of action, then judges should exercise good judgment by declining the project before we create real trouble.¶

II¶

Another independent problem lurks here. This is a suit by foreigners against a foreigner over the meaning of international norms. Respectfully, I do not think the original understanding of the ATS or our precedent permits federal courts to hear cases like this. 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.” 2 Like today’s recodified version, 28 U. S. C.¶

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2 “Sec. 9. And be it further enacted , That the district courts shall have, exclusively of the courts of the several States, cognizance of all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted; and shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; and shall also have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States. And shall also have 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. And shall also have cognizance, concurrent as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars. And shall also have jurisdiction, exclusively of the¶

§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¶

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courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid. And the trial of issues in fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.” 1 Stat. 76–77 (some emphasis added; footnotes omitted).¶

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). The text of the Constitution appears to recognize just this distinction. Article I speaks of “Offences against the Law of Nations,” while both Article III and Article VI’s Supremacy Clause, which defines the scope of pre-emptive federal law, omit that phrase while referring to the “Laws of the United States.” Congress may act to bring provisions of international law into federal law, but they cannot find their way there on their own. “The law of nations is not embodied in any provision of the Constitution, nor in any treaty, act of¶

Congress, or any authority, or commission derived from the United States.” Caperton v. Bowyer , 14 Wall. 216, 228 (1872).¶

Even so, that hardly left the ATS without important work to perform. At the time of the founding, “[i]f a nation failed to redress injuries by its citizens upon the citizens of another nation, the perpetrators’ nation violated the ‘perfect rights’ of the other nation,” which “provided the offended nation with just cause for reprisals or war.” Bellia & Clark, 78 U. Chi. L. Rev., at 476. 3 This reality posed an existential threat to the new nation. Under the Articles of Confederation, States regularly refused to redress injuries their citizens caused foreigners. British creditors, for example, often found their efforts to collect debts from American debtors thwarted. Id. , at 498–501. Seeking to remedy these and similar problems, the Continental Congress in 1781 passed a resolution encouraging the States, among other things, to establish tribunals for vindicating “offences against the law of nations” and to “authorise suits to be instituted for damages by the party injured.” Id., at 495–496. But the States did too little, too late. So when the framers gathered to write the Constitution they included among their chief priorities endowing the national¶

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3 As a leading treatise explained, a sovereign “ought not to suffer his subjects to molest the subjects of others, or to do them an injury, much less should he permit them audaciously to offend foreign powers.” E. de Vattel, 1 The Law of Nations, bk. II, §76, p. 145 (1760). Instead, the nation “ought to oblige the guilty to repair the damage, if that be possible, to inflict on him an exemplary punishment, or, in short, according to the nature of the case, and the circumstances attending it, to deliver him up to the offended state there to receive justice.” Ibid . A sovereign who “refuses to cause a reparation to be made of the damage caused by his subject, or to punish the guilty, or, in short, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it.” Id ., §77, at 145; see also Bellia & Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 472477 (2011).¶

government with sufficient power to ensure the country’s compliance with the law of nations. See 1 Records of the Federal Convention of 1787, pp. 24–25 (M. Farrand rev. 1966).¶

Together with other provisions of the Judiciary Act, the ATS served that purpose. The law of nations required countries to ensure foreign citizens could obtain redress for wrongs committed by domestic defendants, whether “through criminal punishment, extradition, or a civil remedy.” Bellia & Clark, 78 U. Chi. L. Rev., at 509. Yet in 1789 this country had no comprehensive criminal code and no extradition treaty with Great Britain. Id., at 509510. Section 11 achieved a partial solution to the problem by permitting civil diversity suits in federal court between aliens and domestic parties, but that provision required at least $500 in controversy. 1 Stat. 78; cf. 28 U. S. C. §1332(a) (today’s minimum is $75,000). But, as Professors Bellia and Clark have explained, “[h]ad Congress stopped there, it would have omitted an important category of law of nations violations that threatened the peace of the United States: personal injuries that US citizens inflicted upon aliens resulting in less than $500 in damages.” 78 U. Chi. L. Rev., at 509. So the ATS neatly filled the remaining gap by allowing aliens to sue in federal court for a tort in violation of the law of nations regardless of the amount in controversy. One obvious advantage of this solution “was that it was self-executing—it placed the burden on injured aliens to bring suit and did not require the stillforming US government immediately to marshal the resources necessary to prosecute crimes” or aid extraditions. Id., at 510.¶

Any attempt to decipher a cryptic old statute is sure to meet with challenges. For example, one could object that this reading of the Act does not assign to the ATS the work of addressing assaults by aliens against foreign ambassadors on our soil, even though Sosa suggested the statute was enacted partly in response to precisely such a case: the “Marbois incident of May 1784, in which a French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French Legion in Philadelphia.” 542 U. S., at 716. Many thought that the States’ failure to provide a forum for relief to the foreign minister was a scandal and part of what prompted the framers of the Constitution to strengthen the national government. Id., at 717; Bellia & Clark, supra, at 467 (“The Confederation’s inability to remedy or curtail violations like these was a significant factor precipitating the Federal Convention of 1787”).¶

But worries along these lines may be misplaced. The ATS was never meant to serve as a freestanding statute, only as one clause in one section of the Judiciary Act. So even if you think something in the Judiciary Act must be interpreted to address the Marbois incident, that doesn’t mean it must be the ATS clause. And, as it happens, a different provision of the Act did deal expressly with the problem of ambassadorial assaults: Section 13 conferred on this Court “original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul shall be a party.” 1 Stat. 80–81. That implemented Article III’s provision empowering us to hear suits “affecting Ambassadors, other public ministers and Consuls.” §2. And given that §13 deals with the problem of “ambassadors” so directly, it is unclear why we must read §9 to address that same problem. See Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830, 855–858 (2006).¶

Along different but similar lines, some might be concerned that requiring a U. S. defendant in ATS suits would leave the problem of piracy inadequately addressed, given that Sosa suggested that piracy was one of the three offenses the ATS may have meant to capture, and many pirates were foreigners. See 542 U. S., at 719. But here the response is much the same. A separate clause of §9 gave the district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.” 1 Stat. 77. That statute has long been given a broad construction covering “all maritime contracts, torts and injuries,” DeLovio v. Boit , 7 F. Cas. 418, 442 (No. 3,776) (CC Mass. 1815) (Story, J.), along with “prize jurisdiction, which probably included almost all ‘piracy’ cases after 1789,” Lee, supra, at 867. So it is not clear why it’s necessary to cram the problem of piracy into the ATS. If anything, it may be necessary not to do so. Structural features of §9 make it at least questionable that both provisions were meant to address the same subject matter: Cases falling within §9’s ATS clause could also be brought in state court or in the circuit courts, 1 Stat. 77, while §9’s admiralty jurisdiction was generally exclusive, id. , at 7677. See Lee , supra , at 868. And the two provisions also called for incompatible procedures: Section 9 required jury trials “in all causes except civil causes of admiralty and maritime jurisdiction.” 1 Stat. 77 (emphasis added).¶

If doubt lingers on these historical questions, it is a doubt that should counsel restraint all the same. Even if the ATS might have meant to allow foreign ambassadors to sue foreign defendants, or foreign plaintiffs to sue foreign pirates , what would that prove about more mine-run cases like ours, where none of those special concerns are implicated? There are at least serious historical arguments suggesting the ATS was not meant to apply to suits like this one. And to the extent Sosa affords courts discretion to proceed, these arguments should inform any decision whether to exercise that discretion. In Kiobel v. Royal Dutch Petroleum Co. , 569 U. S. 108, 116–117 (2013), the Court invoked Sosa discretion to refuse to hear cases involving foreign conduct. I can see no reason why courts should respond differently when it comes to cases involving foreign defendants. 4¶

Any consideration of Sosa ’s discretion must also account for proper limits on the judicial function. As discussed above, federal courts generally lack the institutional expertise and constitutional authority to oversee foreign policy and national security, and should be wary of straying where they do not belong. See supra, at 4–5. Yet there are degrees of institutional incompetence and constitutional evil. It is one thing for courts to assume the task of creating new causes of action to ensure our citizens abide by the law of nations and avoid reprisals against this country. It is altogether another thing for courts to punish foreign parties for conduct that could not be attributed to the United States and thereby risk reprisals against this country. If a foreign state or citizen violates an “international norm” in a way that offends another foreign state or citizen, the Constitution arms the President and Congress with ample means to address it. Or, if they think best, the political branches may choose to look the other way. But in all events, the decision to impose sanctions in disputes between foreigners over international¶

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4 The dissent is wrong to suggest, post, at 17, that Sosa “forecloses” the possibility of recognizing a U. S.-defendant requirement in ATS cases. Sosa said nothing about the subject. And were Sosa taken to preclude any future limits on ATS suits it did not itself anticipate, then Kiobel must have been wrong to apply the canon against extraterritorial application to that statute. But that is not so. The dissent also observes that Sosa “involved an ATS suit brought by a citizen of Mexico against a citizen of Mexico,” and that certain amici in Sosa filed briefs arguing that the Court lacked authority over the ATS claims for that reason. See post, at 17 . But Sosa did not address those arguments; questions that “merely lurk in the record are not resolved, and no resolution of them may be inferred.” Illinois Bd. of Elections v. Socialist Workers Party , 440 U. S. 173, 183 (1979) (citations and internal quotation marks omitted); accord, RJR Nabisco, Inc. v. European Community , 579 U. S. ___, ___, n. 10 (2016) (slip op., at 23, n. 10) (issue present but unaddressed by the Court in a previous case was not implicitly decided).¶

norms is not ours to make. It is a decision that belongs to those answerable to the people and assigned by the Constitution to defend this nation. If they wish our help, they are free to enlist it, but we should not ever be in the business of elbowing our way in.¶