The Right is cheering on the pro-corporate majority of the Roberts Court as it seems poised to close the courthouse door on victims of serious human rights violations seeking to sue corporations who participate in the wrongdoing. If the Court rules as most observers expect following Tuesday's oral argument, it will be the latest in a long line of Roberts Court decisions that have sharply restricted the ability of consumers, victims of employment discrimination and now victims of human rights violations to seek justice in court. That trend, and especially the conservative majority's decision in Citizens United, would open the Court to criticism of a "baffling double standard" under which corporate "persons" have rights, but not responsibilities.
The people bringing the lawsuit in question, Kiobel v. Royal Dutch Petroleum, were 12 Nigerians who claimed that the defendant corporation (commonly known as Shell Oil) assisted their government, then under the Abacha dictatorship, in massive human rights violations, including torture and murder, during the 1990s. They sued in federal court under the Alien Tort Statute, which permits foreign nationals to bring lawsuits in U.S. courts for violations of international law. Since the 1970s human rights lawyers have used this law to bring suits against individuals and corporations involved in human rights violations abroad.
In the Kiobel case, attorneys for Shell Oil argued that the statute permits lawsuits only against individuals, not corporations. Although the courts of appeal have split on the question, and the text and history of the statute provide little clear guidance, the five conservative justices who make up the Roberts Court's pro-corporate majority seemed persuaded that corporations should be immune to suit under the statute, according to most observers. Justice Anthony Kennedy, one of the five conservative justices, opened the justices' questioning of Kiobel's lawyer by quoting from a brief filed by Chevron, and as one observer noted, for Kiobel the argument went "downhill, from the start."
Although the Court's conservative majority seems to have shown its hand in the case during the argument, the arguments conservatives have brought forth in right-wing media outlets in support of their position in the case are not nearly so strong as to suggest such a clear result. For example, David Rivkin and Lee Casey, former Department of Justice lawyers in Republican administrations, took to the pages of The Wall Street Journal to argue the pro-corporate case:
The recognition of corporate entities as legal "persons" is a relatively recent development. There is no basis in customary international law--the actual practice of states in their dealings with each other--for corporate liability on the international level.
The hole in this argument was made clear by Justice Elena Kagan at oral argument, who explained that international law sets out rules against certain acts, but doesn't provide a laundry list of what sorts of actors (that is, humans, or corporations, or other entities) may not commit the acts, since no one is permitted to:
"That's mostly because all of these are written to prohibit certain acts," rather than who commits them, said Justice Elena Kagan. By analogy, Shell's argument amounted to saying that Norwegians couldn't be held liable for crimes against humanity, because "there's no case about Norwegians," she said. "But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act."
Some observers have placed the Kiobel case in a broader context, noting that the same conservative faction of the Court that expanded corporate rights to participate in elections in the Citizens United case on the grounds that corporations are "persons" entitled to First Amendment protections may now be finding that corporations are not "persons" under the Alien Tort Statute. Peter Weiss of the Center for Constitutional Rights wrote:
This leaves the Supreme Court with an extraordinary choice to make, in juxtaposition to its previous ruling in Citizens United: whether to accept an argument that, in effect, leaves corporations less culpable than individuals are for human rights violations committed abroad -- or whether to hold that if a 200-year-old law can be used to hold individual violators to account, it can be used against corporate violators as well.
A decision affirming that Shell should go unpunished in the Niger Delta case would leave us with a Supreme Court that seems of two minds: in the words of Justice John Paul Stevens's dissent from Citizens United, it threatens "to undermine the integrity of elected institutions across the nation" by treating corporations as people to let them make unlimited political contributions, even as it treats corporations as if they are not people to immunize them from prosecution for the most grievous human rights violations.
A more startling paradox is difficult to imagine. (emphasis in original)
As Michael Sachs has noted:
Having all voted in Citizens United v. Federal Election Commission to extend to corporations the First Amendment right of actual people to independently spend unlimited sums in this country's elections, [the five conservative justices] will in the current case have refused to hold corporations responsible, as real people are, for their roles in atrocities abroad.
Legally, however, ... Kiobel ... is totally unrelated to the Citizens United decision.
Nevertheless, if the Court's conservative majority rules in favor of Shell Oil as expected in Kiobel, that decision will join Citizens United as another instance of the Roberts Court's "receptive ear to business interests."