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?"
And do you have a response as to why Chief Justice Roberts' and Justice Barrett's legal opinions changed in the five years since their ruling in 2021? They certainly didn't bother to explain.
"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.
Take a moment to consider whether I could have written a very similar comment about the Warren and Burger Courts. Mostly what folks are unhappy with today is that the majority approach they grew used to, since it had existed their entire life, has been replaced with a different majority approach. Both are subject to similar criticisms but the new majority, something unseen for most of the last century, is simply too unsettling for folks who are used to seeing their policy preferences adopted by SCOTUS. And so we get today the modern version of Impeach Earl Warren, modified to reflect the fact that the change of a single justice would not be sufficient to change the course of the Court. Today’s court packing schemes are just as mindless but a lot more dangerous, since fixing that “fix” would be a lot harder.
Which of the Warren Court’s most famous decisions do you think were wrongly decided and ought to be overturned by the Roberts Court:
1. Brown v. Board of Education, in which the Court unanimously struck down racial segregation in public schools, reversing Plessy v. Ferguson and declaring “separate but equal” inherently unequal?
2. Baker v. Carr, which established the “one person, one vote” principle, requiring equal representation in legislative districts?
3. Miranda v. Arizona, which created the “Miranda warning,” requiring law enforcement to inform suspects of their rights (including the right to remain silent and the right to an attorney) before custodial interrogation?
4. Hernandez v. Texas, which extended the Fourteenth Amendment’s protections to Mexican Americans, affirming their right to equal protection under the law?
5. Bolling v. Sharpe, which held that segregation in the District of Columbia violated the Fourteenth Amendment?
6. Loving v. Virginia, which struck down state laws banning interracial marriage?
7. Gideon v. Wainwright, which guaranteed the right to counsel for defendants in criminal cases, even if they could not afford an attorney?
8. Engel v. Vitale, which held that state-sponsored prayer in public schools violated the First Amendment?
9. United States v. Nixon, which set a precedent for judicial review of executive branch actions by affirming the principle that no one, not even the President? [Oops! The Roberts Court basically overruled that in Trump v. United States.]
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.
Any discussion of federal common law is not complete without Erie. It was central to Scalia's dissent in Sosa, where he explained that the court's repeal of a general common law made ATS a jurisdictional statute without any cause of action.
It's the court's respect for stare decisis that they didn't mention Erie and kept the "Blackstone three". The court clarified that the additional causes of action Sosa promised were in actuality a null set. Since the court has never affirmed new ATS cause of action, nothing was overturned.
Finally, I agree with your point about foreign relations in Al Shimari. But maybe Congress doesn't. Congress knows how to write causes of action, or for that matter how to authorize federal common law. The presumption is that they create causes of action, not the court.
At a time when Dear Leader has imposed tariffs against our (former) allies based on the spurious claim that they foster slave labor how appropriate that the Roberts Majority ensures that the ATS is dead.
I understand your concern, including about stare decisis, but as (admittedly) an outsider looking in, this felt like a shoe ready to drop.
And, as a policy, I firmly agree that there should be a means to address the harms involved. Unfortunately, and I know how hopeless this is in the short term, it is something that Congress has to address. 21st Century conditions are a somewhat ill fit for a late 18th Century law.
On that front, big picture, I appreciate Mayor Mamdani's comments about the leadership of Israel. Yes, I understand that realistically he spoke in terms of what should be rather than what can (legally) be. But his substantive message is valid. And we need to change the law to get there.
Granting your bottom line, this underlines why people want court expansion.
Some other reforms would be appreciated.
But we have the basic problem of the personnel, who many of us deem in significant part illegitimate (either in selection or for their actions -- Thomas is who I'm talking about here).
Some other reforms will make them act somewhat better. The thieves will drive somewhat less recklessly. They will retain the car, and much of the damage will remain, now defended on stare decisis grounds.
Congress can address this specific thing -- as I said --, but it will be hard. Like a game of whack-a-mole, the same characters will cause trouble in some other way.
I think what may be bothering you about the absence of reasoning for overturning precedent is that, as has happened at the Department of Justice, the Supreme Court has lost “the presumption of regularity”. Without explanation or transparency in its decisions, we lack the ability to assume it is acting in good faith and in accordance with the Constitution. And, in fact, that should bother us all.
Well, reasoning was the heart of regularity, wasn't it? Bush v. Gore's This decision will self-destruct in ten seconds was remarkable in its disregard for anything but the end it pronounced. The Roberts Court, from Heller onward, has made it customary.
Thomas' opinion in Dobbs (overturning Roe v Wade) actually called for people to bring suits that would enable the Court to reconsider precedents relating to contraception and homosexuality!! So no I don't think precedents- and remember Gorsuch disingenuously remarking pre-confirmation that Roe was a precedent upon a precedent... implying that meant he wouldn't try to overturn it (Susan Collins was happy to be duped) and- then we saw how that played out... I don't think precedent matters to the ideologues on the Court. It’s obvious by now that it doesn't. Mr Vladeck's learned and shocked protestations here show that he just can't accept what the Court has become. We also saw the other day Justice Kagan earnestly arguing that SCOTUS still has integrity. But others get it - Andrew Weissmann mentioned that a friend who regularly argues before the Court sees a certain number of them as purely political actors.
I spent the first decade of my career working on Section 1350 cases. I was on the Alvarez Machain and Doe v Unocal teams, and worked closely with Paul Hoffman (who argued Cisco).
Few things depress me more about the current Supreme Court than what they did to Section 1350. A bunch of conservatives hated a statute but lacked the votes to repeal it, so they just killed it with a thousand cuts judicially. Not only is stare decisis for suckers-- textualism and plain meaning is as well.
And the same people who claim "subject to the jurisdiction" creates an open canon for new grounds to deny citizenship, think "tort in violation of the law of nations" is a closed canon limited to 3 torts described in Blackstone's English law treatise.
If the Supreme Court can walk away from precedents it doesn't like, that exacerbates its failure to walk away from the Slaughterhouse Cases and breathe new life into the 14th Amendment's Privileges or Immunities Clause when it had a chance to do so in McDonald v. Chicago, 561 U.S. 742 (2010) (Second Amendment applies to state and local governments via the Due Process Clause). Another gift from Justice Alito, who saw "no need to reconsider" whether that clause had been misinterpreted, despite law professors' urgent requests that it take up the issue. 561 U.S. at 758.
The stare decisis objection assumes Sosa was a holding about what the ATS means. It wasn't — it was a holding about what federal courts may do with it: a reserved power to recognize causes of action Congress never wrote. Declining to exercise an improvised power isn't the same as overruling a construction of a statute.
Al Shimari is the harder point. It shows the diplomatic-harm worry is overstated. But it also shows Congress can authorize these claims — which is the branch that should.
"...Cisco renders Sosa a dead letter." Justice Kagan used the same terminology to describe the majority's decision in Louisiana v. Callais, as rendering Section 2 of the Voting Rights Act as a “dead letter” (which, again, the Court claims it did not explicitly overturn).
In these cases where the Court does not fully (or adequately) acknowledge it is overruling its own precedent, wouldn't that allow a future Court to disregard these rulings and instead adhere to the 'original' precedent (and, have discretion as to which precedent if there are many, like the lower court's Filártiga decision as opposed to Sosa)?
And, can't the Court recognize how their reckless disregard for both precedent and requisite explanation of its decisions leads to this sort of undermining of the rule of law?
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?"
And do you have a response as to why Chief Justice Roberts' and Justice Barrett's legal opinions changed in the five years since their ruling in 2021? They certainly didn't bother to explain.
"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.
Politicians in robes.
Also, "that judicially implied causes of action are disfavored today" is one heck of an originalist practice.
Take a moment to consider whether I could have written a very similar comment about the Warren and Burger Courts. Mostly what folks are unhappy with today is that the majority approach they grew used to, since it had existed their entire life, has been replaced with a different majority approach. Both are subject to similar criticisms but the new majority, something unseen for most of the last century, is simply too unsettling for folks who are used to seeing their policy preferences adopted by SCOTUS. And so we get today the modern version of Impeach Earl Warren, modified to reflect the fact that the change of a single justice would not be sufficient to change the course of the Court. Today’s court packing schemes are just as mindless but a lot more dangerous, since fixing that “fix” would be a lot harder.
Hello, Joe,
Which of the Warren Court’s most famous decisions do you think were wrongly decided and ought to be overturned by the Roberts Court:
1. Brown v. Board of Education, in which the Court unanimously struck down racial segregation in public schools, reversing Plessy v. Ferguson and declaring “separate but equal” inherently unequal?
2. Baker v. Carr, which established the “one person, one vote” principle, requiring equal representation in legislative districts?
3. Miranda v. Arizona, which created the “Miranda warning,” requiring law enforcement to inform suspects of their rights (including the right to remain silent and the right to an attorney) before custodial interrogation?
4. Hernandez v. Texas, which extended the Fourteenth Amendment’s protections to Mexican Americans, affirming their right to equal protection under the law?
5. Bolling v. Sharpe, which held that segregation in the District of Columbia violated the Fourteenth Amendment?
6. Loving v. Virginia, which struck down state laws banning interracial marriage?
7. Gideon v. Wainwright, which guaranteed the right to counsel for defendants in criminal cases, even if they could not afford an attorney?
8. Engel v. Vitale, which held that state-sponsored prayer in public schools violated the First Amendment?
9. United States v. Nixon, which set a precedent for judicial review of executive branch actions by affirming the principle that no one, not even the President? [Oops! The Roberts Court basically overruled that in Trump v. United States.]
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.
Any discussion of federal common law is not complete without Erie. It was central to Scalia's dissent in Sosa, where he explained that the court's repeal of a general common law made ATS a jurisdictional statute without any cause of action.
It's the court's respect for stare decisis that they didn't mention Erie and kept the "Blackstone three". The court clarified that the additional causes of action Sosa promised were in actuality a null set. Since the court has never affirmed new ATS cause of action, nothing was overturned.
Finally, I agree with your point about foreign relations in Al Shimari. But maybe Congress doesn't. Congress knows how to write causes of action, or for that matter how to authorize federal common law. The presumption is that they create causes of action, not the court.
What has become of the concurrent state jurisdiction referred to in the original Judiciary Act?
At a time when Dear Leader has imposed tariffs against our (former) allies based on the spurious claim that they foster slave labor how appropriate that the Roberts Majority ensures that the ATS is dead.
I understand your concern, including about stare decisis, but as (admittedly) an outsider looking in, this felt like a shoe ready to drop.
And, as a policy, I firmly agree that there should be a means to address the harms involved. Unfortunately, and I know how hopeless this is in the short term, it is something that Congress has to address. 21st Century conditions are a somewhat ill fit for a late 18th Century law.
On that front, big picture, I appreciate Mayor Mamdani's comments about the leadership of Israel. Yes, I understand that realistically he spoke in terms of what should be rather than what can (legally) be. But his substantive message is valid. And we need to change the law to get there.
Granting your bottom line, this underlines why people want court expansion.
Some other reforms would be appreciated.
But we have the basic problem of the personnel, who many of us deem in significant part illegitimate (either in selection or for their actions -- Thomas is who I'm talking about here).
Some other reforms will make them act somewhat better. The thieves will drive somewhat less recklessly. They will retain the car, and much of the damage will remain, now defended on stare decisis grounds.
Congress can address this specific thing -- as I said --, but it will be hard. Like a game of whack-a-mole, the same characters will cause trouble in some other way.
I think what may be bothering you about the absence of reasoning for overturning precedent is that, as has happened at the Department of Justice, the Supreme Court has lost “the presumption of regularity”. Without explanation or transparency in its decisions, we lack the ability to assume it is acting in good faith and in accordance with the Constitution. And, in fact, that should bother us all.
Well, reasoning was the heart of regularity, wasn't it? Bush v. Gore's This decision will self-destruct in ten seconds was remarkable in its disregard for anything but the end it pronounced. The Roberts Court, from Heller onward, has made it customary.
Thomas' opinion in Dobbs (overturning Roe v Wade) actually called for people to bring suits that would enable the Court to reconsider precedents relating to contraception and homosexuality!! So no I don't think precedents- and remember Gorsuch disingenuously remarking pre-confirmation that Roe was a precedent upon a precedent... implying that meant he wouldn't try to overturn it (Susan Collins was happy to be duped) and- then we saw how that played out... I don't think precedent matters to the ideologues on the Court. It’s obvious by now that it doesn't. Mr Vladeck's learned and shocked protestations here show that he just can't accept what the Court has become. We also saw the other day Justice Kagan earnestly arguing that SCOTUS still has integrity. But others get it - Andrew Weissmann mentioned that a friend who regularly argues before the Court sees a certain number of them as purely political actors.
I spent the first decade of my career working on Section 1350 cases. I was on the Alvarez Machain and Doe v Unocal teams, and worked closely with Paul Hoffman (who argued Cisco).
Few things depress me more about the current Supreme Court than what they did to Section 1350. A bunch of conservatives hated a statute but lacked the votes to repeal it, so they just killed it with a thousand cuts judicially. Not only is stare decisis for suckers-- textualism and plain meaning is as well.
And the same people who claim "subject to the jurisdiction" creates an open canon for new grounds to deny citizenship, think "tort in violation of the law of nations" is a closed canon limited to 3 torts described in Blackstone's English law treatise.
Just sad all around.
If the Supreme Court can walk away from precedents it doesn't like, that exacerbates its failure to walk away from the Slaughterhouse Cases and breathe new life into the 14th Amendment's Privileges or Immunities Clause when it had a chance to do so in McDonald v. Chicago, 561 U.S. 742 (2010) (Second Amendment applies to state and local governments via the Due Process Clause). Another gift from Justice Alito, who saw "no need to reconsider" whether that clause had been misinterpreted, despite law professors' urgent requests that it take up the issue. 561 U.S. at 758.
The stare decisis objection assumes Sosa was a holding about what the ATS means. It wasn't — it was a holding about what federal courts may do with it: a reserved power to recognize causes of action Congress never wrote. Declining to exercise an improvised power isn't the same as overruling a construction of a statute.
Al Shimari is the harder point. It shows the diplomatic-harm worry is overstated. But it also shows Congress can authorize these claims — which is the branch that should.
"...Cisco renders Sosa a dead letter." Justice Kagan used the same terminology to describe the majority's decision in Louisiana v. Callais, as rendering Section 2 of the Voting Rights Act as a “dead letter” (which, again, the Court claims it did not explicitly overturn).
In these cases where the Court does not fully (or adequately) acknowledge it is overruling its own precedent, wouldn't that allow a future Court to disregard these rulings and instead adhere to the 'original' precedent (and, have discretion as to which precedent if there are many, like the lower court's Filártiga decision as opposed to Sosa)?
And, can't the Court recognize how their reckless disregard for both precedent and requisite explanation of its decisions leads to this sort of undermining of the rule of law?