Will Baude: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan Epps: And I'm Dan Epps. A record-breaking episode.
Will: Assuming we release this one.
Dan: 29 episodes of season 6. Previous record set last season of 28.
Will: So we did it.
Dan: Prediction fulfilled.
Will: How do you feel?
Dan: Good. Good. It's been going well. We might even do more next season. Let's see. We're in a good rhythm. I think we've figured out a way to kind of make the recording sessions not take 4 hours, which helps.
Will: Which is by talking about one case at a time?
Dan: I think that helps. And to try to rein in the intro chitchat just a little bit. There's often a lot of other interesting things to talk about, but trying to stay a little bit more laser-focused at the target of the episode, I think has some benefits.
Will: Yeah. Also scheduling them when we have other places to be later in the day, that seems to help.
Dan: Oh yeah, that works. Yeah. Hard stop is a good strategy, just like giving yourself firm deadlines for writing projects, also a good strategy.
Will: Oh, does that work for you?
Dan: Well, so far it's always a little stressful.
Will: Where do you find firm deadlines, Dan? It's very hard to find them.
Dan: Co-authors.
Will: Oh, that's true.
Dan: If co-authors are expecting things from you or you're planning to meet a co-author at a certain time, you have to do something. Journals, right? Sometimes if you get a solicited piece, you owe it on a date certain, things like that. But there's a good reason for co-authorship is that you're not just hurting yourself if you procrastinate.
Will: That's true.
Dan: You are screwing over your friend and nobody wants to do that. So that's my advice. Doesn't always work, but doing my best. Okay. So we've got one case to talk about. What pre-case stuff do you have that you'd like to chitchat about?
Will: Well, did you see that there is a new Alito Wall Street Journal interview, which he, I think, somewhat conclusively made clear he's not retiring.
Dan: I think we knew that, but—
Will: Yes, he's quoted. This is again an interview with James Taranto of the Wall Street Journal. It's sort of like a mix of an interview with Justice Alito and Taranto's thoughts about recent book reviews of recent biographies of Alito and a few other things. But it begins with, obviously I'm here for another term, Justice Alito, 76, says a month later during a rare summertime visit to his chambers.
Dan: Do I get credit for a prediction that comes true? Because I think I was pretty emphatic when the Nina Totenberg kerfuffle popped up that he was not retiring. A lot of people said, no, it's an elaborate con. It was an embargoed leak.
Will: How deep does the con go? Maybe. It's not pleasant in the sense that it's a reminder of mortality, Alito says. It's like, what are those vultures doing up there? They're flying around, but it goes with life tenure.
Dan: Well, I'm glad he has that perspective to recognize that it must come with the territory.
Will: Yeah.
Dan: But depending on how the midterm elections go, he may regret that choice or he may not. Yeah.
Will: There were just 2 other interesting things in the interview that I thought were worth mentioning. So one is, Taranto asks him about Callais and about the fact that, I think as we noted on the podcast, Callais is the first time the Court as a whole called it our colorblind Constitution, not counting the sort of ambiguous block quote in SFFA. And so he asks Alito about that. And the interviewer says, Justice Alito, who wrote for the majority in Callais, didn't notice the milestone. I was not aware that was the first time we'd ever said it, he says. Then he double-checks my claim asking, the Court hadn't said it in Students for Fair Admissions?
Dan: Which was exactly my reaction. You were the one who noted that. So you're a particularly observant court watcher.
Will: Well, but you are actually more in the mind of Justice Alito. He wrote it the way you read it.
Dan: Very simpatico. Same wavelength.
Will: You should write about him.
Dan: Just might.
Will: And apparently an anecdote of the 2 biographies of Alito that came out this summer, there's one that's a glowing biography and one that's a scathing biography. And in the scathing biography, the author apparently tracks down Justice Alito's high school English teacher to share her thoughts.
Dan: She must be quite aged.
Will: Well, it was 60 years ago, and I don't know what age she was at the time, but 60 plus X is not a small number.
Dan: Yeah.
Will: And she says, when he was on that shortlist and a couple of newspaper and TV people came to interview me, I remembered saying Sam had a strong moral compass, she says. That's what I believed at the time. He was straight and narrow. I think he had a sense of right and wrong. Where Sam has picked up all these ideas now, you've got me. How has he become this ultra, ultra conservative? Then she takes a stab at psychoanalysis. He was very responsible, made sure everything was on the dotted line. Even his penmanship was very well-formed. There was nothing sloppy about it. He was very methodical, very methodical. Does that equate with rigidity? I'm not going to answer that one. How flexible a thinker was he? I'm not sure about that either.
Dan: What would your high school teachers say about you?
Will: Nobody would say that I had good penmanship. In fact, many of them might say that my penmanship was sufficiently abominable they wondered whether I'd be able to make anything of myself.
Dan: What about your views? Would they have been surprised to know that you're a darling of the right? You're not really a darling of the right anymore.
Will: What am I?
Dan: I don't know.
Will: One of my favorite high school teachers, after I said several things in class, sort of looked at me very skeptically and almost angrily and said, Will, are you some kind of libertarian? And I did not know what that was. And I went home and looked it up. And thought it sounded pretty good. And so Mr. Flannery sort of awakened me to my libertarian instincts. And at the time, it was hard to find things. So I actually ended up having to set up— my parents were— my dad especially was an early adopter of LexisNexis. And so I set up Lexis News Alerts for the word libertarian and the name Ayn Rand so I could read any newspaper story in the country that mentioned either of those things, which were not that many.
Dan: I mean, wasn't she dead by that point already?
Will: Yeah, but at the time it turned out a professional golfer who briefly made a run at being one of the best golfers in the country, David Duval, was apparently an Ayn Rand fan and a libertarian. And that would occasionally come up in profiles of him when he was winning some tournaments. So I got into golf so I could be a Duval fan. I read some Ayn Rand. So, you know, they make an impact. Justice Alito, by the way, answered, she was a very good teacher, and she did make an important contribution to my education by urging me to read more broadly. So I won't say anything. I didn't know that she'd said that. I didn't know that her views about me had changed in that way. So anyway, that's news to me.
Dan: Sounds kind of sad. Yeah.
Will: I think people don't know that Justice Alito is a very nice man. Just as a man, he's very nice, whatever you think of his opinions and everything else. But I'm not surprised that he had a sort of gracious take.
Dan: I mean, even his public persona can sometimes have sharp edges though, not just his writing.
Will: His public persona, yes. I was trying to distinguish the man from the justice, whatever you think of the justice.
Dan: His persona, as a man. I don't know. I mean, I guess there's what comes across from the justice's writing, and then what comes across for how the person holds themselves out in the world. And then there's what happens behind closed doors, I guess.
Will: I'm just saying, if you were to run into him at the airport, I just predict even among the Justices that he'd be one of the more polite and gracious people.
Dan: Have you run into him at the airport?
Will: No, but I would like to. Of all the justices, he might be the one I'd most want to run into at the airport.
Dan: He might actually use an airport. As opposed to a private jet hangar.
Will: Or an RV.
Dan: Yeah. He has done the private jet thing some, but I think he probably does regular airports too. Yeah.
Will: Although— I think he splits his time up and down the East Coast. He may well be a driver, an I-95 or an Amtrak guy.
Dan: Okay. So other things that happened, not much happening on the Court.
Will: Well, at least as of the time we're recording. By the time this gets released, we may well be out of date on that.
Dan: Yeah, that's almost certainly true. We are recording on Monday, August 10th. I think last episode we mentioned the applications about the mail-in voting thing. Still fully briefed, still no action by the Court.
Will: And this is dangerous prediction territory because of course by the time this episode airs, the prediction may already be true or false.
Dan: But so it goes. I don't think it's been filed yet, but I think, are we expecting soon an emergency application about the DC Circuit opinion about the White House ballroom?
Will: Yes. I think we've— I mean, the DC Circuit itself stayed its decision for 14 days. I think we've seen various public statements that a stay cert petition is coming. The smart money on the internet commentariat seems to be that the DC Circuit will be reversed on standing grounds, which does not seem obvious to me, but if that's what everybody thinks, I assume they're right.
Dan: You don't actually assume that. You don't assume that everyone on Twitter is right.
Will: No, but when a bunch of people have predictions, I try to downgrade my confidence in my own prediction unless I'm confident they're missing something. If my prediction comes from just my assessment of the objective materials, then I try to downgrade my confidence.
Dan: Okay. The deadline for petition for rehearing in Trump v. Barbara passed without any such petition. There had been some talk that the administration might try a rehearing petition, which would've gone nowhere. So instead, the administration seems to be doing something different. They've released some new executive orders aimed at trying to carve out a little space theoretically left open by Barbara to deny birthright citizenship for narrower classes of people. I don't know if you've looked at the substance of these yet and have a view on whether they are within legitimate space left by that decision or whether they're something closer to defiance.
Will: Not careful. And maybe a mix. I've not looked at this carefully. The exceptions include kind of trying to broaden the children of ambassadors exception to include a broad range of embassy staff, which I think is contrary to the original meaning/common law, but I guess raises the question about how fixed that category is. I think there's an exception for the territories where the lower courts have held that— which the lower courts have held are not the United States for purposes of born in the United States. Although there's statutory birthright citizenship for every territory except for American Samoa. And so in that one, I think he's sort of lining up with the lower court cases, but maybe this actually increases the chance of Supreme Court attention to the issue. And then also some sort of a birth tourism exception and a surrogacy exception, whose details I don't totally understand.
Dan: Yeah, I think it's aimed at saying that it's fraud to come here for birth tourism, and then that would provide some basis for, I don't know, criminal prosecution. I don't totally understand.
Will: So I have not looked at these carefully, and I guess I should. I hesitate to say anything that's an untutored reaction given the stakes of this, but my untutored instinct is—
Dan: Who would be tutoring you?
Will: Who would be tutoring me?
Dan: You'd be self-tutoring?
Will: Self-tutoring? No, I could be tutored by many experts in this field. We have friends who've written on both sides of this, or I could take a class, presumably some law school class that covers these materials. I guess I teach that class. Unstudied instinct, is that better?
Dan: Sure.
Will: Yeah. I think this really tees up the statutory question. Several of these you could at least imagine, depending on your method of originalism and the level of abstraction problem, you can at least imagine a constitutional argument, but it'll really tee up the question of where did this come from and who gave the president the power to define these sort of workarounds. And that's also, I was just thinking about it because you could imagine how this litigation works is a little less obvious, who the classes will be, who the plaintiffs will be, what the relief will be. But if you were the parent of a child covered by this order, might you just wait until 2028 and see if the order goes away? And if the order goes away, is that good? Do you need to have an executive order on your side at the time your child is born, or is it enough that we just later all agree that that was the right answer?
Dan: And so when? Apply for a passport later? Don't even apply for a passport now?
Will: Yeah. Although again, if you applied for— if you waited until— I mean, now who knows? The next president may well continue this order depending on how they are. But yeah, if you imagine a different president rescinds the order on January 20th, 2029, you apply for a passport then. Maybe that's fine. Although then I guess if a new president puts in place a new order in 2033, then you lose your passport, which might all be reasons that a court might just say, this is not how— citizenship law is not made by the president. But I don't know.
Dan: So we'll see if anything happens with that. Okay. What else? We've got already— summer is really ending because we've got our argument calendar for October. In keeping with the Court's slower pace these days, we've only got 7 cases.
Will: Let's see what's on the argument calendar. Oh, they're starting with Suncor. That might be a case that we actually have to preview, Dan.
Dan: I'm willing to do that. Yeah. Okay.
Will: It might be the most— it's a Fed Courts case. It's a constitutional law case, the conflict case. This is the case about whether state law torts can hold energy companies accountable for the harms of climate change.
Dan: Big deal. And it's an interesting preemption question, right?
Will: Yeah. And it's one of these conservative intuitions in search of a constitutional clause questions. I mean, I think that the standard view would be the Court granted cert in this case to say no, Boulder County and the state courts of Colorado cannot hold to account the global energy industry. But exactly what provision of federal law says they can't is confusing.
Dan: Well, give people enough time, enough briefs, enough lawyers, they can find something, right? Yeah.
Will: Well, it's interesting also. I haven't even read all the amicus briefs, but there are also some interesting crossovers. Jonathan Adler, relatively conservative libertarian scholar and author of The Volokh Conspiracy, had a solo amicus brief on the side of the plaintiffs, which is not maybe where people would normally imagine his political instincts, but just saying, this is what Congress can preempt this if it wants to. This is what the Commerce Clause is for. So we'll see. Okay.
Dan: Other follow-up. Joe DeMott wrote in to say that we noted the weirdness about Justice Thomas only wanting to talk about Rooker but not Feldman. And apparently Justice Stevens in dissent in a case called Lance versus Dennis also took the position that Rooker is good and Feldman is bad.
Will: Yeah. I mean, this is not actually my view. I'm skeptical of both of them, but I really like the idea of Rooker anti-Feldmanism as a position to put back on the table.
Dan: I still haven't gotten to the bottom of why, what's different.
Will: Well, when you teach Fed Courts, you can figure it out.
Dan: Okay. I'm covering that towards the end of the semester. Yeah.
Will: Good. Okay.
Dan: So anything else from the mailbag or anything?
Will: Yeah. One other mailbag. A long and very interesting comment from Michael Rosman about our Title IX and equal protection sex sports episode, just pointing out among other things that lower courts, he says, have without exception held that schools cannot stop women from playing football on the men's team. I guess it's not the men's team. And thus, he can't see how a public school could preclude a transgender person from doing so either.
Dan: But they wouldn't let a male student play on the girls' team?
Will: Well, there isn't a girls' football team, I think.
Dan: Well, I know, no, but I'm just— is the reason that that happens because football is a single gender? There's only men's football teams?
Will: I think so.
Dan: Okay. And it would be different if you had options, single-sex options?
Will: I'm not positive, but I think that's the classic rationale.
Dan: Okay.
Will: He also pushed back on our, and I guess the Court's, use of the phrase equal opportunity to describe the sex-segregated sports regime, because he says that separate sex-segregated teams do not provide equal opportunity as that phrase is generally understood, but rather create opportunities that would not exist for women if everyone had to compete for the same team. They're more in the category of set-asides or affirmative action than they are just equal opportunity.
Dan: Yeah, I guess it depends what you mean by opportunity. It seems like if everybody has a chance to compete, that seems like equal opportunity to me.
Will: Right. But the point is not everybody has a chance to compete for these spots. These are—
Dan: Yeah. But I mean, any given person has a chance to compete for a team where they could play, right? That's an equal opportunity. They don't even have a chance to compete for the same teams.
Will: Well, they don't have the same chance to compete.
Dan: Yeah.
Will: So I don't know whether you call it— I mean, what is the equal doing? It's true. There are opportunities and some people have them and some are better than others. Maybe the— I mean, I have to think more about this. Maybe just equal opportunity is one of these strategically vague phrases that's supposed to mean something obviously weaker than equal outcome. When you say equal opportunity, the whole point is we're not saying you get it, we're saying you might.
Dan: Yeah, you get a chance.
Will: And then actually a complete theory of what it is for the opportunities to be equal rather than unequal, that may actually be something that people often don't think through before using the phrase, I'm not sure. Anyway, a lot of interesting feedback in there that I'm not expert enough to fully go into, but appreciate the pushback.
Dan: The Court's approval is down. Gallup poll, Court is at 33% approval and then underwater with 61% disapproval, lowest in the 26-year trend. And that's largely driven by a new drop in Republican approval of the Court, presumably because of Trump v. Barbara.
Will: Yeah.
Dan: Maybe tariffs. I'm not sure where Republicans are on tariffs. I think a lot of Republicans don't like tariffs, right?
Will: Right. And this is one of these interesting things about how we should think about this and legitimacy, because I think we talked about this. In a sense, one of the complaints about the Court is that they mostly rule in favor of the conservative positions and even the Trump administration's positions with only a few high-profile exceptions that people are overplaying. But of course, those high-profile exceptions are maybe the ones that uninformed conservative readers or listeners or whatever, uninformed conservatives care about the most. So that might be the maximally legitimacy, anti-legitimacy strategy, right? Rule in favor of conservative positions on the Voting Rights Act and against them on birthright citizenship. Whereas if you struck down birthright citizenship, but also left Roe in place or something, or— you might be much more popular and much more lawless.
Dan: Depending on your theory of interpretation.
Will: I guess. I mean, is there a theory of interpretation that produces the opposite result in both those cases?
Dan: I bet we can come up with one by the end of the episode.
Will: I mean, there's no person on the Court who has that view— both those cases, for instance. And it doesn't— it's hard to even imagine Justice Kennedy or Justice O'Connor would've had that position.
Dan: Yeah, probably not, but you never know.
Will: Yeah. Okay. Okay.
Dan: Anything else before we get to substance?
Will: No. Let's talk about this case.
Dan: All right. So let's do our sole case of the day, Cisco Systems v.— Okay. Cisco Systems versus Doe.
Will: An anonymous person versus a faceless corporation.
Dan: Okay. And this is a case in a series of cases about a very old statute called the Alien Tort Statute.
Will: I guess it's called the Alien Tort Statute. I prefer to call it, Dan, Section 9 of the Judiciary Act of 1789.
Dan: That's more historically accurate?
Will: Well, it's more— so A, everybody should read the Judiciary Act of 1789 sometime in law school. Just read through the whole thing and see all the different provisions and what they were doing, because it's a good way. Actually, it's a great way to review for federal courts because there are a bunch of different things that relate. And you're like, oh yeah, this is the thing that comes up in Marbury. This is the thing that comes up here. And seeing them all together as part of a statute rather than as discrete jurisdictional grants is helpful. And I mean, the Alien Tort Statute makes it— calling it the Alien Tort Statute makes it seem like sometime at the founding, the framers sat down and said, all right, we got to enact something to deal with these alien torts. And I mean, there is an enactment that we're about to talk about, but it's not like it's a standalone statute that has a known purpose. It's just a provision of the Judiciary Act that we basically know nothing. We have no direct evidence of where it came from or what it's supposed to do. And we have various inferences about what it might do. And then what I was going to talk about, in the late 20th century, we spent a lot of time trying to develop a theory of what it might do and whether to let it do that.
Dan: Okay. Well, why don't we try to develop a theory from first principles and then talk about precedent and then get to the case? Or is that backwards?
Will: That's edgy. That's great. Sure.
Dan: Okay. So this is in the Judiciary Act of 1789.
Will: Okay.
Dan: Yes. This part of the provision, which perhaps anachronistically is called the Alien Tort Statute, but we'll just call it the ATS to keep things simple. It grants federal courts jurisdiction over 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.
Will: Mm-hmm.
Dan: Okay. So it is, and this is how it's going to be understood by the Court. It is a jurisdictional statute.
Will: Yes.
Dan: So it's just saying courts are allowed to hear these things.
Will: Right. And again, if you were to read it in its original Section 9 setting, so Section 9 is this whole section where they start dealing with the jurisdiction of the district courts, and it starts with, the district courts shall have exclusive jurisdiction of crimes and offenses under the authority of the United States, and then this, and then this. And then it eventually gets to, and they 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 treaty of the United States. So they're just laying out, and this is importantly at a time when district courts— no, federal courts— don't just have jurisdiction over all federal questions. That's something that Congress does not grant them until 1875. And even then, there's an amount in controversy that moves for various times. But the idea that just, it's a federal question, so federal courts have it, was not something that was there under the original structure. It's like, is it a federal crime? Is there some reason we should have it? Otherwise, it might well be in state court. Okay.
Dan: So absent the statute, this is not something that federal courts would have had jurisdiction over.
Will: Right.
Dan: So federal courts have jurisdiction. What do you think, obviously with all the caveats that you just gave us about there being basically no contemporaneous evidence, what would the first Congress have been meaning to do by writing this statute? And maybe put differently, what causes of action would they have imagined would be brought using this jurisdictional statute? So presumably, they must have envisioned something, right? Otherwise, this is a waste of words. Yeah.
Will: Well, you might not. I mean, you might do something without actually knowing why you're doing it or envisioning it. So I'm not sure. For instance, and the treaties and the torts in violation of the laws of nations are both in there. So a treaty is a kind of federal law. So you might have started with, we're probably going to enact some treaties. We got to make sure the district courts, the federal courts have jurisdiction to enforce the treaties because we're thinking about the Jay Treaty and other possible treaties we're going to enter, and we don't want to lose federal jurisdiction over those.
Dan: And might there have been treaties that include within them causes of action?
Will: Yeah. Treaties may well have settled property claims in various ways that would then allow people to sue for property and claims under the treaties, or that would make guarantees that states might violate. That seems totally plausible. Eventually, of course, we're going to sign treaties about slave trade. You could easily imagine those being broken and people suing about them. That doesn't seem— There's now a doctrine of sort of some treaties are so-called self-executing, meaning they're law enforceable by courts, and others are non-self-executing, meaning they can't be enforced by courts until Congress or the president make them enforceable. And there's a lot of debate about how well understood that division was at the time. And so it could be that you started with treaties and then somebody said, well, okay, treaties, but what about the things that are already established under the laws of nations? And somebody says, oh yeah, well, I guess we should put that in without necessarily having thought something through. That could be. I think 2 common things people say are this might be about the Marbois affair. There was an incident in the early republic where somebody attacked an ambassador, maybe in Pennsylvania, and it was thought to be embarrassing or important that we show that if that happened, that person would have a place to go and somebody to sue. Now, it's a lot of debate about, is there any evidence that actually motivated them? Does this actually map onto the Marbois affair? But you could put in the category maybe, if somebody sends their ambassadors here and then they get beat up, we got to show we care about them.
Dan: But what would the cause of action be?
Will: I think it's thought to be a violation of the international law principle of safe conduct or right of safe conduct.
Dan: Okay. And so under that understanding, this would have envisioned there being some free-floating cause of action, right? At the time, the law of nations would've been understood as general law, correct?
Will: Yes. Yes. The law of nations was a brooding omnipresence in the sky, in some sense, even more uncontroversial than the general law itself. There are people then and now who might say, I'm not sure there's general law about contracts or torts in general, but the law of nations, sure. You'll find it in Vattel and Pufendorf and all these things that lay out the customary law of nations. Piracy would, of course, be another big thing the law of nations just forbade on its own.
Dan: And there still sort of is, right? I mean, there still is this concept of international law that is not made by any one sovereign.
Will: Yes.
Dan: Right? I mean, you can debate whether, you know, how real it is and whether it does anything and stuff like that, but—
Will: Yes. Now people debate whether it's real, both because, as we talked about in our book episode with Daryl Levinson, you know, there is not an international law police, and it's not clear how seriously countries take it. Also, the idea of international law has been— at the same time it's become sort of more questionable in force, it's become broader in scope. So now there's more of an idea there might be international human rights and international humanitarian law and sort of a lot of things that maybe were not thought to be in the jurisdiction of the law of nations in 1789 now are. And those might be related, right? If taking international law seriously means there's an unwritten law of the minimum wage or voting rights or something, then we might be less likely to treat it as forceful when it's just about pirates and mail and seizures of boats.
Dan: Okay. But so you're a court in 1789. You have been given jurisdiction over torts arising under treaties or the law of nations. If you are in that position as a court, do you feel like you have to go find some statute letting the plaintiff bring that claim, or do you think that those causes of action are just kind of free-floating out there as well?
Will: More like the second than the first, although I think even the way causes of action worked back in 1789 is a little different than I think about it now, because this was a time when they still had the forms of action. So when you sued in tort, it was for trespass on the case, or conversion, or whatever. And so usually the form of action and the cause of action kind of work together.
Dan: And where did you get those?
Will: Okay, so people debate about that. So some people think that's just sort of a matter of general law. Some people think that came from the Process Acts, which set up the courts and are sort of on the procedural side. And it also might be different for the law of nations half and the treaty half. It might be that if somebody sues under a treaty, you would say, I need to see in the treaty some evidence that the treaty conferred on you at least individual rights, whether because of cause of action, but something that— the law of nations, I think you would treat this the way you would treat— it's really like a diversity provision. Because the law of nations is not federal law, so it's not federal question jurisdiction. This is more like the same way as you would treat a tort by a citizen of Maryland against a citizen of Virginia. And so you would just apply the free-floating causes of action in Maryland or Virginia tort law or in the general law that was shared by Maryland and Virginia, I think.
Dan: Okay. But this would have suggested the ability of a plaintiff to come in and raise at least some category of law of nations claims, which, without some further statute authorizing the specifics, correct?
Will: I think so, yes.
Dan: Okay. That's my understanding as well. Okay. Now, I guess there would've been questions. Let's say that's true, but there would've been some questions about what constitutes the law of nations.
Will: Yeah.
Dan: I don't know if this was a time when the law of nations was treated as fixed, whether it had continued to evolve. In the 20th century, there's all sorts of things where liberal law professors across the world come up with new theories, and there's supposedly international law norms against all sorts of things.
Will: Yeah.
Dan: How would that have been conceptualized? Would the drafters of the Judiciary Act have thought that there is a fixed set of law of nations things out there, or is it seen as a more evolving body of law?
Will: I think the law of nations would be like the common law in the sense that it's supposed to be found, not made. So it's not the case that you as a judge just get to say, okay, we're creating a new law of nations cause of action. And maybe that's even more true of the law of nations than it is of a state's common law. But I think it— and a lot of it is derived as a matter of first principles from principles of sovereignty, but there is some customary aspect to it too, I think. And this is something that the judges grappled with even in the early republic is they could read cases from England from 1780 and 1380 and notice that the cases were not the same.
Dan: Right.
Will: And say, okay, well, I guess the rule in 1380 and the rule in 1780 were not the same, so it's the case that the common law was not fixed. But then if it was 1820 and you said, well, you should do to the 1780 case what the 1780 case did to the 1380 case, they would say, well, we can't do that. That would be changing the common law. And exactly how to deal with that is maybe the hard question that starts to get us into the modern things. But then, now we're getting really speculative, but if you were to then say to them, okay, but imagine it's not 1780, imagine it's 2180. Are you saying that in 2180, the judges have to do exactly what we did in 1780? I assume they would say, no, presumably not. But if you were to say, well, imagine there was a sort of broad consensus of liberal law professors to recognize something called international humanitarian law that causes the law of nations to encompass all these topics and whatever, whatever, whatever.
Dan: Yeah.
Will: So you're saying the courts would go along with that? I assume they would say, stop making up stupid hypos. That's never going to happen. Okay.
Dan: So that's the background. And then this is on the books, but then it's not really used much. It sort of goes dormant.
Will: Yeah.
Dan: Why do we think that is, by the way?
Will: Well—
Dan: Just there weren't incidents that caused people to need this? Diplomats weren't getting beaten up all the time.
Will: Well, and there are also— at some point, there are federal question jurisdiction and treaties. So eventually, there's a different— eventually, we deal with treaties under another federal question area. So the question is, what was the body of torts in violation of the non-treaty law of nations that might've been remedied. And I think probably not a ton of core cases of ambassadors getting beat up who really wanted to be in a federal district court to get their tort remedy. But then the question is, what about the other stuff? What about the other possible norms?
Dan: Yeah. But I mean, that doesn't pop up for a very long time until the 20th century. When suddenly plaintiffs in courts discover this, I guess, rediscover it for the first time in a very long time.
Will: Yeah. I think some has been written about this, about sort of the early prehistory of the Alien Tort Statute. 1980s, when the Second Circuit first permits such a statute. And of course, such a case has to be brought before it can be recognized. And I don't know whether there are a few others before that, what do they look like? Of course, another sort of general feature of where the ATS has ended up now is that US courts are considered a very good place to sue compared to all the courts around the world in terms of the remedies available, the receptivity of the courts to creative causes of action, discovery, et cetera. I don't know when that happened. I assume it was not always true. So you might imagine it's some union of the relative friendliness of our courts to creative claims by plaintiffs, the evolution of international norms from creative lawyering. I'm not sure. I'm not sure how we got there. But in 1980, we get there. Okay.
Dan: And then these plaintiffs are people trying to bring claims based on evolving international law norms, things from international human rights law.
Will: Yeah. I mean, and how evolving— I mean, again, it depends on the case. Sometimes these are terrible things where somebody has held people in slavery or tortured them or done other obviously very bad things. But then there could be a question about, okay, that's clearly obviously very bad and terrible. Is it part of the law of nations? Is aiding and abetting that part of the law of nations? Is that— there are bunch of other different versions of the claim, but they're not usually core examples of violations of safe conducts, infringement of the rights of ambassadors, or piracy.
Dan: Okay. So this gets going, and then the Supreme Court starts paying attention to it.
Will: Yes. Well, it gets going, and then first Congress pays attention to it by enacting a statute, the Torture Victim Protection Act of 1991, that creates a federal cause of action for some set of foreign atrocities. And then the Supreme Court pays attention to it, I guess.
Dan: Does that line up with the jurisdictional grant, or does that have its own jurisdictional grant?
Will: I think it has its own.
Dan: Or can you just use general federal question jurisdiction at that point?
Will: Once you have a federal statute creating a federal cause of action, you can just use federal question jurisdiction. Okay.
Dan: So then the ATS is irrelevant. Right.
Will: And then I guess the Supreme Court pays attention to it for the first time 20-some years in, in 2004, in a case called Sosa v. Alvarez-Machain.
Dan: And so in that case, the Court said 2 things that the Court in Cisco that we'll get to in a little bit says are deeply inconsistent. One is that this is a strictly jurisdictional statute. So it's not a statute that provides a cause of action. It's just a statute that opens the doors to certain kinds of claims. But then it leaves open the possibility that there could be some kinds of claims that are not written down in statute that are viable to bring using this ATS process. Did not find one of those applicable in that case, but left open that possibility.
Will: Yeah.
Dan: Including some kind of traditional things that would've been recognized as protected rights at the time, but also maybe other stuff that's kind of like those things.
Will: Right. And yeah, I think this is an opinion by Justice Souter who had a gift for nuance.
Dan: Complexity.
Will: What's that?
Dan: Complexity.
Will: Well, yeah, but also not in a bad way, I think. So yeah, I think Souter said, on the one hand, we are very skeptical of the view that you can only bring an ATS claim if there's been another statute enacted since then. That one view would be, this is just a statute. It's part of the Judiciary Act. We're just like, we're putting a pin in this. If we do later recognize torts in violation of law of nations, this is where they go. But by itself, the statute does nothing. And Justice Souter says, we're dubious of that. On the other hand, they say, probably they were thinking of a pretty small set of things, like violations of safe conduct, attacks on ambassadors, and piracy.
Dan: Piracy. But also maybe other stuff sort of like that, right?
Will: Maybe. And then that's where Sosa kind of opens the door to maybe other stuff, but we're kind of dubious of other stuff.
Dan: Yeah.
Will: Again, it's a nuanced opinion. Okay.
Dan: And then there are several cases between then and now that continue to rein things in. There's a case called Kiobel from 2013, which restricted suits based on extraterritorial conduct without sufficient connections to the United States. Okay. And then a few years later, we have Jesner versus Arab Bank, and that said you can't sue foreign corporations under the ATS, I think. Is that the basic holding of that case?
Will: Yes, which sort of has to be right because if the underlying law here is not federal law, which it's not, although maybe we think it is. Then this has to be— the constitutional basis of the statute has to be a diversity statute. And a diversity claim would be an alien versus some kind of US citizen or US state. And so it's tough to see how you could— what would be the basis for a federal court to have jurisdiction over 2 foreign parties over something that's not federal law?
Dan: No.
Will: The truly deep take though would be to say, well, corporations aren't people at all. And so anytime there's a suit over a corporation, it's really a suit over the shareholders. So maybe if you had a US shareholder, that would be enough.
Dan: But so to clarify, it would be okay if you had a US citizen plaintiff suing a foreign corporation, but that doesn't work here because ATS is only about torts where the plaintiff is an alien as well.
Will: Exactly. And that's always part of the puzzle of the statute is here we are opening US courts to noncitizens who are suing on non-US law. And so then the question is, well, why would we do that? Maybe we have reasons, but it's sort of presumptively not the natural thing our US courts do to hear things, the claims that are neither brought by US citizens nor involving US law. So who are they brought against and why are we hearing them?
Dan: Okay. And then a few years later, 2021, we have Nestlé USA v. Doe. This is the case where a lot of Neal Katyal's liberal fans started to question whether he was maybe not actually a #ResistanceHero, where he was defending Nestlé against allegations of complicity in child slavery, which isn't great.
Will: Mm-hmm.
Dan: And I think it was an interesting example of how the role of being an attorney for really big corporations and being a kind of Resistance, progressive hero are not always compatible. Those 2 roles are not always compatible. Okay. There, it was another question about extraterritoriality and whether the activity in question was corporate decision-making, whether that made the activity in question domestic or if the actual bad stuff that happened happened out of the country or there was extraterritorial. And that was extraterritorial. So yet another case that is cutting back on this. So we have case after case after case after case that is making it hard to bring these suits and not letting them go forward. Sosa leaves open though this bit of daylight.
Will: Right. So Sosa is the first case. Sosa leaves the door open. And then for 2 decades, people try to put things through the door. And every time, to the extent the Supreme Court gets involved, which is not every case, the Supreme Court says, no, no, no, that doesn't fit in the door.
Dan: Yeah.
Will: That doesn't fit the door, but the door is open because people keep trying to bring things through. Hence, this is, as you said, a big business for people who represent big corporations on jurisdictional questions. I once interviewed for an associate position at the appellate group of a major law firm where a lot of nerdy people were. And then as they were going around the table talking about their work, it was a lot of this kind of thing, Alien Tort Statute, this kind of immunity.
Dan: Child slavery stuff.
Will: Yeah. To the point that then somebody at the lunch who I liked a lot sort of joked. He said, as you can see, we have a thriving atrocities practice. I mean, that was the moment I realized that somebody who's an appellate lawyer in DC for a private firm may well be a specialist in—
Dan: Yeah.
Will: Defending atrocities, or at least helping the deep pockets stay out of the— avoid paying for the atrocities.
Dan: Yeah. Alleged atrocities.
Will: Yeah. Many of the atrocities are real, no question.
Dan: Alleged complicity in atrocities.
Will: Yeah. I mean, some of them may not. It's fine. All big corporations are innocent until proven guilty, Dan.
Dan: Okay. And so here, so we have this door left open for a long time, never actually allowed. No one has ever been permitted to walk through the door. And now the Court in this case is going to say, actually, let's close it. This is not possible. We'll talk about the reasoning, but just at the outset, this reminded me a lot of Edwards v. Vannoy. Do you remember that one?
Will: I do. I was hoping you'd bring it up.
Dan: Okay. Yeah, that was a case where for decades, the Court had had this precedent, Teague v. Lane, which basically said most rules of criminal procedure are not retroactive in post-conviction review.
Will: Mm-hmm.
Dan: So these are cases where someone has been convicted, they've gone up through the normal appellate process and tried to get relief, and then later they're coming back and going into a habeas court, and they're trying to rely on some decision that was issued in between the end of their appeals and the seeking post-conviction review. And the Court, for a long time, and Teague had said there's a couple exceptions, and one of them was for watershed rules of criminal procedure. So rules that are so fundamental and so important and such a big deal that we have to make them retroactive. And then the Court had never said a rule can fit into that category.
Will: Yeah.
Dan: Even a bunch of really important rules that the Court had recognized in the decades. And then in Edwards versus Vannoy, they said, this is a closed set. There's no more watershed rules. This exception is moribund. Door is closed. And we're going to do the same thing here, although even more so here for reasons we can talk about.
Will: Right. And then on page 11, the Court even, they repeatedly cite and quote Vannoy as an example. They say, we've never done this. See Vannoy, or cf. Vannoy. It's a high bar. We're not going to indulge the fiction. We don't want to mislead people into thinking recovery is available. We are closing the door here too. It's a very interesting phenomenon generally, I guess, this kind of door closing. Is door closing always dicta? There's a way in which it's never necessary to say the door is closed as opposed to you can't fit through the door.
Dan: I think it's not dicta. I mean, it's in the sense that if the court rejects your claim, on the basis of certain reasoning, that reasoning forms part of the rule of law generated by the case. And so I don't think you can say anytime the court gives you a rule, the rule is not actually the rule because you can come up with some tendentious factual distinction.
Will: Right. Although it seems a little different.
Dan: At least if you're a lower court, you would be ill-advised to treat this as dicta. And I think it would be implausible for a future Supreme Court trying to overrule the case to say it wasn't overruling.
Will: Right. Although there is a way in which closing the door is only resolving— the only thing that's interesting about closing the door as opposed to every other ATS case where the alleged atrocities win is the resolution of future hypothetical cases. What's the difference between this and all the previous holdings? The only difference is what this says about the hypothetical cases that we've not yet envisioned where something might have otherwise been able to get through the door.
Dan: Well, I don't know if that's totally right. I mean, you could say that's true about any time the court recognizes a rule that sweeps broader than in the particular case in front of them.
Will: Yeah. I mean, I guess that is the common pitch for minimalism. But is it different? Maybe it's not. But when the door was left open by previous precedent, it's one thing if we've just never had something like this before and you ask me, how do you think about this area of law? And I tell you how we think about it. But here, there was a previous case opening a door. And so, I mean, I'm not against it exactly. It's just kind of puzzling. And then the last puzzle is imagine eventually the new hypo, the really good case that would've fit through the door, but for this case does come up.
Dan: Yeah.
Will: Is the Supreme Court really going to be bound by that? They get something that's a grotesque violation of clearly established international law that they never envisioned before. I don't know. And somebody sues and they say, well, this is the unicorn, the Sosa unicorn that would've worked, but we closed the door without thinking about it back in Cisco. So I guess we're stuck.
Dan: Well, I mean, I think a majority in that case could do an effective job saying they're not overruling the case, and a dissent could do a good job saying they are overruling, which is sort of what happens here, right? We've got a majority opinion by Justice Barrett joined by the other conservative justices, partial concurrence, partial dissent by Justice Jackson joined by Kagan, and then a full dissent by Justice Sotomayor. And Justice Sotomayor says, you are overruling Sosa, and the majority doesn't quite accept that premise.
Will: Right. Can I ask one more door-closing question? Is political gerrymandering also an example? So under Justice Kennedy, for decades, the Court had the door open in Vieth versus a long word starting with a J I can't pronounce.
Dan: Jubelirer.
Will: The Court said, we are leaving the door open to a future claim against partisan gerrymandering, although we have never seen such a claim formulated in terms we're willing to accept. It might be out there. And then in Rucho, the Court says, no, no, no. We're closing the door.
Dan: Is that— I mean, again, the reasoning is because it's a political question, right? And if something's a political question, it's just something that a federal court can't do anything about, right?
Will: Right. But I'm just saying, is that also door closing? It's a little—
Dan: Yeah.
Will: Vannoy and Sosa are jurisdictiony or cause of actiony.
Dan: That's a political question. That's jurisdictional, right?
Will: Yeah, I guess. But in Rucho, it's a political question that seems very merits-inflected. It's a political question because there is no law on the subject, and were there to be a law on the subject, it would not be a political question. But yeah. So I guess that actually, since you usually need 3 examples to make a law review article, I guess there's a law review article to be written on the Roberts Court's door closing.
Dan: This seems very ripe for a Richard Re Green Bag piece.
Will: I have in fact talked about all 3 of those examples with Richard Re already.
Dan: So sorry, the 3 are Edwards versus Vannoy, this one, and Rucho?
Will: Yeah.
Dan: Okay. Do we have a unifying thesis or not?
Will: I'm not sure. I guess I think there are some discontinuities that are interesting, like the effects of the different door closers. Rucho seems to have been a very consequential door closing. It seems to be the case that the amount of blatant political gerrymandering post-Rucho is much higher than before.
Dan: Yeah, which is my view. I'm going to go so far as to say that's bad.
Will: Right. Whereas in Vannoy, it seems like a relatively inconsequential door closing. Now, that could be because Rucho is about the legality, or at least the suability of primary conduct, whereas Vannoy is like this double afterthought, like retroactivity exceptions. It's hard to see how police officers are going to behave differently now that they know there's never going to be another watershed rule of criminal procedure. And the ATS might be somewhere in between. And there's a little fight in the footnotes about this in this case about, is this a kind of inconsequential door closing or not? Justice Barrett, in footnote 2, after the citing of Vannoy, the Court says, while few plaintiffs have successfully litigated ATS suits to final judgment, many more have sued and obtained large settlements, citing an article by Oona Hathaway and others in the Cornell Law Review. Shutting off the possibility of additional ATS liability thus also provides clarity to defendants. So it does seem to be sort of saying this is kind of a big deal, because right now plaintiffs are suing and settling, and now the alleged atrocity aiders and abettors can not have to settle. But I don't know. That's part of what we'll be interested in is try to put them together. I assume it is instead going to get a more tendentious treatment by somebody who just is pro-door and will write a, like, the Roberts Court is closing the doors to the courthouse. You could stitch in the thing where they closed the doors to the front of the courthouse and Justice Breyer complained. Do you remember this?
Dan: It was 6-3, right?
Will: I thought it was 7-2.
Dan: Maybe it was 7-2.
Will: But you could do a whole, the Roberts Court is against justice because they're against doors, or they like doors, they close the doors. I don't know. I'm not endorsing that, obviously.
Dan: Okay.
Will: Okay.
Dan: So door closed in this opinion by Justice Barrett.
Will: Except, yeah.
Dan: Except though—
Will: What about pirates?
Dan: Yeah, there still is. I think the majority is accepting the premise that the so-called Blackstone 3, those 3 things that you mentioned a second ago.
Will: Yeah.
Dan: Including piracy, safe conduct of ambassadors, and offenses against ambassadors. Violations of safe conduct, piracy, and safe conduct violations. I wouldn't say that this opinion full-throatedly says that those are okay.
Will: But it seems to say that is a thing Sosa held that they are not revisiting. We do not disturb Sosa's holding that the ATS is a jurisdictional statute, nor do we revisit its assumption that causes of action are available for torts corresponding to the Blackstone 3. So I guess they're saying maybe not a holding, but it has an assumption that there are torts for the Blackstone 3.
Dan: And it says they're not revisiting it, but it doesn't rule out— there could be a revisitation at some later time.
Will: Well, right. When somebody successfully sues a pirate, we'll see.
Dan: Pirates don't actually have a lot of resources, is my sense.
Will: I don't know if you've ever been to www.theblackstonethree.com, but they appear to be a—
Dan: Is it a real thing?
Will: They appear to be a Phoenix-based trio specializing in original and cover music for all events, parties, and concert venues with a fun and unique blend of rock, country, and blues.
Dan: Is that true? That's amazing. Yeah.
Will: I spent some time on this earlier this summer at a Fed Courts roundtable. I believe the phrase Blackstone 3 was coined in a series of lower court opinions by Justice, then Judge, Kavanaugh on the D.C. Circuit.
Dan: I mean, the phrase is sort of just thrown out there without clear definition in text, which sort of surprised me.
Will: It's just asserted like a thing you should know, like, no, no, no, 1,000 times no. It's another one of those allusions. But the Blackstone 3, of course. So I hope the Spotify listens for the Blackstone 3, the band, are going up after this.
Dan: Probably not.
Will: Okay.
Dan: And we should also just say there's a question in the case about whether the Torture Victim Protection Act, which the plaintiffs are also suing under, provides aiding and abetting liability. 8 justices say it does not, and that's not the main focus of the case. Specifically, the plaintiffs here are people who have been harmed by or are relatives of those who have been harmed by the Chinese government's treatment and abuse of members of the Falun Gong religious order. And they're suing Cisco, which at least according to the facts in Justice Sotomayor's opinion, seemed to have been very enthusiastically involved in helping the Chinese government set up a surveillance network to track the Falun Gong people, which is somewhat troubling.
Will: It is. Although this is also, of course, part of the general Alien Tort Statute problem is that there are lots of terrible things that happen around the world, sometimes with the blessings of the people who are in formal or informal power in that place. And so whether the Alien Tort Statute is supposed to be a general liability for cooperating with heinous regimes in the places where those heinous regimes govern is part of that underlying question.
Dan: Yeah.
Will: Okay.
Dan: And so the reasoning that the majority is going to give, I would describe as fairly modern, if that makes sense. It's going to rely on cases from recent decades, and particularly ones from the last 10 years or so, making it harder to recognize a cause of action that's not officially granted by— plainly granted by Congress.
Will: Yes.
Dan: This idea that implied causes of action are highly disfavored.
Will: Right. More than highly. I guess that's the point is at the time of Sosa, implied causes of action were highly disfavored, and now they are incredibly disfavored. Yeah. Now they're dead. I think they're now forbidden except where grandfathered in by existing precedent.
Dan: Which is almost nowhere.
Will: Right. And even where grandfathered in by existing precedent, possibly also forbidden. Yeah. The only question— a lot of these cases are Bivens cases, like a new cause of action under the Constitution. The only question in Bivens cases is, since there are no new Bivens causes of action, how many of the old Bivens causes of action are overruled?
Dan: Yeah.
Will: And every year the Court overrules Bivens again, and then we have to figure out whether there's anything left.
Dan: Yeah. I think you can still sue on the exact facts of Bivens where an FBI or DEA agent breaks into your house and hurts you.
Will: Well, Dan, Bivens involved the Bureau of Narcotics.
Dan: Isn't that the predecessor to the DEA?
Will: Yeah, that's not the exact facts. I'm waiting for the case where John Sauer says, actually, it's only the people who work for the Bureau of Narcotics.
Dan: Yeah. Okay.
Will: And there have to be 6 of them, and they have to be unnamed. So now there's the irony, of course, that at the same time, the Court continues to recognize the implied cause of action for injunctive relief under Ex parte Young. Like a few days after this opinion in Trump v. Cook, Justice Thomas says, hey, this seems to be an implied cause of action against the president on behalf of somebody with no statute. What are we doing? And the Court says, oh yeah, we do this all the time. It's just Ex parte Young, which the Court has called a judge-made cause of action. And it's a longstanding source of amusement and puzzlement that there are just 2 lines on this and they mostly don't talk to one another. Yeah.
Dan: I mean, Ex parte Young is a judge-made rule. Isn't there some argument that, at least under some circumstances, a cause of action itself comes directly from the Constitution?
Will: Maybe, but if the cause of action— I mean, under the same clauses, the courts will regularly recognize the ability to sue for equitable relief and not the ability to sue for damages.
Dan: Yeah.
Will: I promise that if Cook also brought a lawsuit against Trump in his individual capacity for damages, even before we got to immunity, the Court would say, well, there's no cause of action. And in Bivens itself, Justice Harlan has a separate opinion defending the creation of a cause of action by saying, we do this in equity all the time. I don't know why we wouldn't do damages too. But mostly we don't. My colleague Sam Bray and his former colleague Paul Miller have an article saying the reason we do this is because equity actually didn't traditionally have causes of action. That's just not a thing in equity. And so we've always done equitable relief differently. You have to have an equitable grievance.
Dan: But for money, you did have to have something that resembles a modern cause of action.
Will: Yeah. I mean, law had forms and equity didn't, although equity had stuff that was kind of the same but kind of different.
Dan: But so is this totally anachronistic to bring this kind of modern separation of powers, textualism, conservatism to this ancient statute?
Will: Yes. I mean, if we were to be non-anachronistic, Sosa was right. To say judges can't just make up new causes of action. That's not a thing. But there could be one that's well-established in the brooding omnipresence in the sky, either that's always been well-established and we just haven't thought of it, noticed it yet, or potentially even that became well-established over time the way that the law of tort eventually became established out of things that weren't the law of tort before. And I think Sosa was, as a sort of, I mean, the more originalist opinion to say, well, we can't rule that out. It could happen. That's not to say any of the individual cases that have attempted to take us up on that are right. And maybe as a matter of modern doctrine or just how to run the railroad, you have to tell people, okay, that's interesting, Professor Souter, to tell them theoretically this could be out there, but we got to run a legal system here and just tell people to stop doing this stuff.
Dan: And is this kind of a victory for the Curt Bradley, Jack Goldsmith way of seeing the world and the legal system, which is the idea that in a post-Erie universe, there isn't any more law floating out there, in the world. And so you have to tie it to something. This is kind of the Erie algorithm idea. And therefore, if you can't find a federal law hook to bring a claim like this, it's no-go.
Will: Yes. I mean, to the extent we have to score opinions, but it is weird in a couple of ways. What Bradley and Goldsmith say is, Erie changed a whole lot of things. And so you got to be very careful about ever porting over old things from pre-Erie to post-Erie. And you got to do the Erie algorithm and figure out, where did this go? There is no general law of nations anymore. Erie forbids it. And so you got to instead treat it as causes of action or whatever. The one weird thing though is that the Court never mentions Erie. So it's not doing what Professors Bradley and Goldsmith would do in the sense of clearly tracing, like, okay, this was the pre-Erie world. We now hereby run the Erie algorithm, and here's where it comes from instead.
Dan: It's just kind of relying on these modern cases and these modern principles. It feels very anachronistic to me.
Will: Right. Although it does acknowledge that the nature of law is different between now and then. They quote Sosa as acknowledging that under the jurisprudence at the time the statute was enacted, law was found, not made. And so these things would've been in the ether and you shouldn't make them anymore. There is also a reading of the majority opinion that's more friendly to the general law way of seeing things, that would just be to say something like, look, the set of Alien Tort Statute claims we're dealing with are all judge-made claims. Nobody is— the found claims are the Blackstone 3. And maybe hypothetically, there will one day be one we haven't thought of, but that's the Blackstone 3. And the only question is, can courts add to the Blackstone 3? And the answer is no. Courts can't add anything to the Blackstone 3. And that would be a classical way of deciding the case. If you just take it as an assumption that any new claim must be the result of judge-made law, then the opinion makes sense. Sosa is probably analytically correct to say, well, why would we assume that? But this decision is probably empirically correct that all the cases involve judge-made law.
Dan: But this is not an originalist decision. Is this fundamentally inconsistent with originalist premises? Is this a case where the Court is doing selective originalism? It sort of feels like that to me.
Will: Well, the holding of the case is consistent with originalism, because again, we all agree that this case wouldn't work under any view, right? So then the question is—
Dan: Sorry, why is that? Why could there not be now a general law rule if this was a—
Will: if we were still under— There in fact is not a general law rule of aiding and abetting for cases like this. But you'd have to talk about that. That's true.
Dan: Okay. Yeah.
Will: But then the door closing maybe is selective originalism in the sense that the true originalist would leave the door open. Although maybe the door would be more clearly very small.
Dan: But I mean, even the whole perspective of saying this is about, you have to have this talking about implied causes of action and so forth, wouldn't an originalist opinion be like, yes, there can be these sources of law that derive from somewhere else that do carry with them the ability to bring suit, at least potentially, right?
Will: Yes. But again, the way the opinion is phrased is just all about the question of when can courts create causes of action.
Dan: Yeah.
Will: And it says a bunch of correct things about that, which is like basically never.
Dan: Yeah.
Will: And then so the selective originalist part is never talking about, well, what if we thought about this not as a creating case, but a finding case?
Dan: Yeah.
Will: What then? And that's just something it like very, I mean, it doesn't talk about. And I was going to say very carefully doesn't talk about. They don't tell us it's very carefully not talking about it, but I suspect it's very carefully not talking about it. Because they can all say correct non-selective originalist things about creating causes of action. And then the possibility that they were just out there is just sort of ignored.
Dan: Interesting. Feels a little unsatisfying to me. And I'm skeptical of the broader project of basically making it impossible to sue for all sorts of constitutional violations, of which this is a kind of related development, all the Bivens cases. I tend to think that historically, there was a greater role for courts in recognizing, fashioning remedies, but this Court doesn't think that.
Will: Well, yeah, but it's the Bivens cases we should care about. In the Bivens cases, I mean, first of all, the Constitution might be, dare I say, more important than these inchoate law of nations norms.
Dan: But also— I guess particularly where the people seeking to vindicate them don't necessarily have strong connections to the US.
Will: Could be, not to be too nationalist about it. But in the Bivens cases, the Bivens assumption crowded out a bunch of other law that was supposed to be there. It's also true at the founding that you didn't necessarily have a Bivens cause of action against federal officials who violated your rights, but you had state law and common law causes of action.
Dan: Yeah.
Will: And then over time, we took those rights away. Bivens itself is astonishing about this, because Bivens says, well, everybody agrees you could sue the Federal Bureau of Narcotics agents in state court for a state tort, obviously. But that's not good enough. We need federal constitutional law here to ensure uniformity and provide adequate remedies and so on. And then, of course, now nobody agrees you could sue them in federal court and state court.
Dan: I mean, it seems like maybe the best path would be to say those statutes are unconstitutional, depriving people of remedies.
Will: Yes.
Dan: That's a remedy that would've been presumed to exist.
Will: There's a debate about whether the statute even does, because the main statute, the Westfall Act, seems to presuppose the existence of constitutional causes of action as part of its reason for cutting these off. And there's an article by Steve Vladeck and Carlos Vázquez about what does it really do, but to the extent it does. And in one of the Bivens cases, also litigated by Steve Vladeck, I think he gave that to the Court as QP2. If you're going to say there's no Bivens cause of action, then is it unconstitutional for the Westfall Act to take away the real cause of action? But the Court didn't want to talk about that. That's the real— the Westfall Act is the real selective originalism. Yeah.
Dan: Okay. Yeah, this one is interesting because it seems like kind of a big case, but somehow they managed to make it pretty short. Majority is only 14 pages. Dissent is only 20-some pages. Only one very short separate writing from Justice Jackson. And it's the kind of case where you could have thought you might have seen various concurrences and so forth. Yeah.
Will: But—
Dan: And maybe that's because some of the people that you might expect to write don't know what to say about it.
Will: Right. Yeah. If you're going to start talking about the real law of nations, it gets more complicated.
Dan: Yeah. Okay. Anything else to say about this one?
Will: No, that's all I have.
Dan: Well, thanks very much for listening. Please rate and review the show wherever you get your podcasts, whether that's the Apple Podcast Store or elsewhere. Please share the show with anyone who might enjoy listening to it, friends, colleagues, co-clerks, students, relatives, opposing counsel, and so forth. You can visit our website, dividedargument.com, for transcripts. We are actually putting episodes up on YouTube on a little bit of a delay if you want to see them in video format. I don't really understand why you would, but that is an option. blog.dividedargument.com for commentary from the expanded Divided Argument universe. store.dividedargument.com for merchandise. You can send us an email, pod@dividedargument.com. You can leave us a voice message using a form on our website or by calling 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: If there's a long delay between this and our next episode, it will be because Will has been taken by pirates during his vacation, and it's unclear whether anyone will have a cause of action to vindicate his rights.