The Court's June 23 ruling in Cisco was significant not only for what it means for human rights accountability, but for the justices' approach to stare decisis.
If I understand your argument, it is that a statute that lay dormant for 200 years with no evidence that it was intended to create a general vehicle for abuse claims from around the world had its general and vague language turned into such a vehicle by academic lobbying and a series of judicial decisions, a pretty common thing in our judicial history. But now the most recent judicial decision, by a different set of judges, concludes that manufacturing of a broad legal right was in fact judicial overreach from its inception and it says so, thus ending that line of judicial overreach. I take it you are unhappy with both the substantive result and with the fact that they did so without engaging with the details of all the previous judicial reasoning they found unjustified. Do I have this right? If so, this tribute to the virtues of stare decisis has some merit -- after all, it would be a bad thing for courts to merely reverse previous decisions they thought wrong in their core without explaining why they did so. Of course, this Court did explain that, but you find their explanation unpersuasive and too limited, because it does not recognize the importance of the previous judicial imagination by dealing with that in detail. It's a valid argument, I guess, but does not persuade me, since my reaction to this decision is "What took them so long?"
"For 46 years, the ATS gave torture survivors somewhere to go when no one else would hold their abusers to account—all the more so when the abusers were Americans or American corporations."
I've been working on several stories about the role of religion in 18th century Colonial life. Perhaps for that reason, I've been pondering how, or whether, moral norms shaped the crafting of our Constitution.
.
Many, hopefully most of us would agree that the Founders didn't get it all right. As one historian I interviewed said, they avoided the issue of slavery like the plague.
(We also treat freedom to practice a faith, or not, as a principle, when in fact it might also have been a desire to avoid controversy.)
It still doesn't mean that there was no place for using a moral compass in drafting the Constitution, or that they didn't take the norms of the time into account. Some of those debates were quite heated.
A contemporary conservative argument that the law can be divorced from either the political realm or fundamental moral norms seems disingenuous... at best.
Your lament for stare decisis points at the core problem with the Roberts "court": it contains a solid majority of "justices" who, whatever they may otherwise profess, do not believe in the rule of law or the Constitution they swore an oath to uphold. Judges who appropriately respect stare decisis demonstrate that they respect the law even when they disagree with it. This "court" displays no such respect. If it disagrees with the Constitution, it invents fundamental alterations in that document (presidential immunity). It continuously exalts its own power at the expense other elements of the federal judiciary, disregarding procedure, inventing facts and standing in order to arrive at desired results, displacing the "lower" courts' role as fact-finders. This is just what leaps to mind: regular readers of One First might make a lengthy list of such defalcations, usurpations, dishonesty, and lawlessness. We do not have a functioning Supreme Court - not, that is, a Supreme Court that behaves like a real court - and we haven't had one for quite some time. We just have people in black robes who aren't actually Justices but play them on TV. Justice Kagan (one of the three to whom the title may be applied without scare quotes) may be right when she denies that the "Court" majority has a strictly partisan agenda. The real situation may be worse. The majority's agenda is, in essence, authoritarian, that is, the pursuit and exercise of power for its own sake, without regard to law, in service of the majority's personal policy preferences. True, that aligns quite often with MAGA desires, but only because, as the saying goes, birds of a feather flock together.
In response to Joe, it is correct that "manufacturing of a broad legal right" is judicial overreach. But interpreting a statutory clause such as a grant of jurisdiction to cover matters closely analogous to those nonexclusively and somewhat vaguely described in the statute - that's not overreach, it's what we have a Supreme Court for. Jettisoning such a precedent without thorough examination of why it was so incorrect as to require such a drastic action amounts to no more than a statement of personal preference, not legal reasoning.
Despite the fact. (or possibly because of it), that the United States government has over the years eschewed the notion of there being such a thing as international law.....and despite the fact it does not participate in the Court of International Justice any more or recognize its decisions or jurisdiction when it comes to America, .....despite the fact that the US has most notably along a rogues gallery of other countries, not signed on to UNCLOS, .....and despite the fact that Donald Trump has placed sanctions on judges of the Court of International Justice for doing things he did not like.....
There is actually quite a lot of current American foreign policy and domestic political struggle that is built on top of a mountainous pile of metaphysical things known collectively as The Law of Nations. And much blood and money has been spent because of them. They all can very reasonably be considered as falling under the heading of Blackstone's third category, that of Piracy. But that is no longer as narrow as Prof. Vladeck says it is nor likely ever was, for terrorists like pirates, are for sure in America, considered to be criminals under the Law of Nations and for the past thirty years and more, according to political sources, the United States has been engaged with an abstract thing called "The War on Terror". With the advent of Donald Trump's second term as president, the concept of terrorism has been expanded to include another perennial occupation of pirates and others, known as smuggling, in this case, drug smuggling. He has averred that drug smugglers are waging a war of terror against America and that it is under invasion by aliens who include in their midst numerous such terrorists. And most recently the President has condoned a Department of State document which equates communists with terrorists finding both to be against all that is "human", thus per force against the Law of Nations, and further that there are many communists or communist sympathizers now in America who by reason of their political activities have been aiding and abetting acts of terrorism (like for instance sheltering illegal aliens) and henceforth will be liable to prosecution for such. Generally speaking such people are those who do not support the President and every thing decides. So we see that quite a large political edifice has been built in America on top of a thing known as the Law of Nations and that there is actually a lot to it.
For this reason I have no fears for the future of the Alien Torts Act, or whatever it is now called. And I find it easy to agree with the majority in this Supreme Court on the simple point of law that the Judiciary Act of 1789 is merely jurisdictional. Bravo. So what. The Sun Also Rises. And in the east.
When the Pirate ship Wydah foundered off Nauset beach in about 1690, not all those aboard died. Some made it to shore. They were not killed on the spot. They were taken to Boston where they were tried for piracy before the highest court there. They faced justice there, not on Nauset Beach nor at sea; in accordance with the Laws of Nations as recognized by the English King and Parliament.
And someday soon, I predict a lawyer is going to walk in to Federal Court in Miami and file a wrongful death claim against the President of the United States, his Defense Secretary, and certain Navy officers and seaman, on behalf of a Barbados women whose fisherman husband was blown to bits by a Hellfire missile fired at his boat by a US Navy helicopter or drone, as he was returning home. Her claim will be based on the Law of Nations. Murder on the High Seas. Terrorism. Piracy.
In the Court opinions I have read (mostly concerning the Voting Rights Act) it seems clear that the majority gets rid of something it has long disliked and invents such legal reasoning as more or less bears on the matter. Details don't much matter to them.
The overarching sense of these six is that they'll do as they please, regardless of any other considerations. Makes me very nervous in light of the upcoming midterm (that could well see Trump impeached again, and conceivably see serious limits placed by Congress on the Court's free hand to invent law.) It's clear that Trump hopes to defraud the public in the midterms. It seems as clear to me that the Court will more than likely aid this effort even more directly than it already has.
Thanks, Steve, for the details of the Alien Sedition Act. I didn’t know all that it entailed and appreciated learning more about it.
If I understand your argument, it is that a statute that lay dormant for 200 years with no evidence that it was intended to create a general vehicle for abuse claims from around the world had its general and vague language turned into such a vehicle by academic lobbying and a series of judicial decisions, a pretty common thing in our judicial history. But now the most recent judicial decision, by a different set of judges, concludes that manufacturing of a broad legal right was in fact judicial overreach from its inception and it says so, thus ending that line of judicial overreach. I take it you are unhappy with both the substantive result and with the fact that they did so without engaging with the details of all the previous judicial reasoning they found unjustified. Do I have this right? If so, this tribute to the virtues of stare decisis has some merit -- after all, it would be a bad thing for courts to merely reverse previous decisions they thought wrong in their core without explaining why they did so. Of course, this Court did explain that, but you find their explanation unpersuasive and too limited, because it does not recognize the importance of the previous judicial imagination by dealing with that in detail. It's a valid argument, I guess, but does not persuade me, since my reaction to this decision is "What took them so long?"
"For 46 years, the ATS gave torture survivors somewhere to go when no one else would hold their abusers to account—all the more so when the abusers were Americans or American corporations."
I've been working on several stories about the role of religion in 18th century Colonial life. Perhaps for that reason, I've been pondering how, or whether, moral norms shaped the crafting of our Constitution.
.
Many, hopefully most of us would agree that the Founders didn't get it all right. As one historian I interviewed said, they avoided the issue of slavery like the plague.
(We also treat freedom to practice a faith, or not, as a principle, when in fact it might also have been a desire to avoid controversy.)
It still doesn't mean that there was no place for using a moral compass in drafting the Constitution, or that they didn't take the norms of the time into account. Some of those debates were quite heated.
A contemporary conservative argument that the law can be divorced from either the political realm or fundamental moral norms seems disingenuous... at best.
Your lament for stare decisis points at the core problem with the Roberts "court": it contains a solid majority of "justices" who, whatever they may otherwise profess, do not believe in the rule of law or the Constitution they swore an oath to uphold. Judges who appropriately respect stare decisis demonstrate that they respect the law even when they disagree with it. This "court" displays no such respect. If it disagrees with the Constitution, it invents fundamental alterations in that document (presidential immunity). It continuously exalts its own power at the expense other elements of the federal judiciary, disregarding procedure, inventing facts and standing in order to arrive at desired results, displacing the "lower" courts' role as fact-finders. This is just what leaps to mind: regular readers of One First might make a lengthy list of such defalcations, usurpations, dishonesty, and lawlessness. We do not have a functioning Supreme Court - not, that is, a Supreme Court that behaves like a real court - and we haven't had one for quite some time. We just have people in black robes who aren't actually Justices but play them on TV. Justice Kagan (one of the three to whom the title may be applied without scare quotes) may be right when she denies that the "Court" majority has a strictly partisan agenda. The real situation may be worse. The majority's agenda is, in essence, authoritarian, that is, the pursuit and exercise of power for its own sake, without regard to law, in service of the majority's personal policy preferences. True, that aligns quite often with MAGA desires, but only because, as the saying goes, birds of a feather flock together.
In response to Joe, it is correct that "manufacturing of a broad legal right" is judicial overreach. But interpreting a statutory clause such as a grant of jurisdiction to cover matters closely analogous to those nonexclusively and somewhat vaguely described in the statute - that's not overreach, it's what we have a Supreme Court for. Jettisoning such a precedent without thorough examination of why it was so incorrect as to require such a drastic action amounts to no more than a statement of personal preference, not legal reasoning.
Despite the fact. (or possibly because of it), that the United States government has over the years eschewed the notion of there being such a thing as international law.....and despite the fact it does not participate in the Court of International Justice any more or recognize its decisions or jurisdiction when it comes to America, .....despite the fact that the US has most notably along a rogues gallery of other countries, not signed on to UNCLOS, .....and despite the fact that Donald Trump has placed sanctions on judges of the Court of International Justice for doing things he did not like.....
There is actually quite a lot of current American foreign policy and domestic political struggle that is built on top of a mountainous pile of metaphysical things known collectively as The Law of Nations. And much blood and money has been spent because of them. They all can very reasonably be considered as falling under the heading of Blackstone's third category, that of Piracy. But that is no longer as narrow as Prof. Vladeck says it is nor likely ever was, for terrorists like pirates, are for sure in America, considered to be criminals under the Law of Nations and for the past thirty years and more, according to political sources, the United States has been engaged with an abstract thing called "The War on Terror". With the advent of Donald Trump's second term as president, the concept of terrorism has been expanded to include another perennial occupation of pirates and others, known as smuggling, in this case, drug smuggling. He has averred that drug smugglers are waging a war of terror against America and that it is under invasion by aliens who include in their midst numerous such terrorists. And most recently the President has condoned a Department of State document which equates communists with terrorists finding both to be against all that is "human", thus per force against the Law of Nations, and further that there are many communists or communist sympathizers now in America who by reason of their political activities have been aiding and abetting acts of terrorism (like for instance sheltering illegal aliens) and henceforth will be liable to prosecution for such. Generally speaking such people are those who do not support the President and every thing decides. So we see that quite a large political edifice has been built in America on top of a thing known as the Law of Nations and that there is actually a lot to it.
For this reason I have no fears for the future of the Alien Torts Act, or whatever it is now called. And I find it easy to agree with the majority in this Supreme Court on the simple point of law that the Judiciary Act of 1789 is merely jurisdictional. Bravo. So what. The Sun Also Rises. And in the east.
When the Pirate ship Wydah foundered off Nauset beach in about 1690, not all those aboard died. Some made it to shore. They were not killed on the spot. They were taken to Boston where they were tried for piracy before the highest court there. They faced justice there, not on Nauset Beach nor at sea; in accordance with the Laws of Nations as recognized by the English King and Parliament.
And someday soon, I predict a lawyer is going to walk in to Federal Court in Miami and file a wrongful death claim against the President of the United States, his Defense Secretary, and certain Navy officers and seaman, on behalf of a Barbados women whose fisherman husband was blown to bits by a Hellfire missile fired at his boat by a US Navy helicopter or drone, as he was returning home. Her claim will be based on the Law of Nations. Murder on the High Seas. Terrorism. Piracy.
In the Court opinions I have read (mostly concerning the Voting Rights Act) it seems clear that the majority gets rid of something it has long disliked and invents such legal reasoning as more or less bears on the matter. Details don't much matter to them.
The overarching sense of these six is that they'll do as they please, regardless of any other considerations. Makes me very nervous in light of the upcoming midterm (that could well see Trump impeached again, and conceivably see serious limits placed by Congress on the Court's free hand to invent law.) It's clear that Trump hopes to defraud the public in the midterms. It seems as clear to me that the Court will more than likely aid this effort even more directly than it already has.