The Supreme Court term opens today (Monday) with the re-argument of the Kiobel case, which will help determine the scope of the Alien Tort Statute (ATS), which allows non-Americans to sue in US courts for violations of international law. When Kiobel first came before the Supreme Court, the case was briefed and argued as case about corporate aiding and abetting, which is how the Second Circuit Court of Appeals had resolved the case. Sitting en banc, the Second Circuit held that corporations could not be sued under the ATS for aiding and abetting human rights abuses because corporations are not subjects of international law. But when the appeal was first heard by the Supreme Court last year, the justices showed little interest in discussing corporate liability, and instead wanted to know why U.S. courts should have jurisdiction over human rights lawsuits, filed by non-citizens, that have no discernible connection to the United States. The lawyers were somewhat blindsided by this development, and after the justices' conference, the case was calendared for re-briefing and re-argument this term.
So here we are. As my colleague Mike Dorf notes in an excellent post this morning, the ATS was referred to by Judge Friendly as a "judicial Lohengrin" because "no one seems to know whence it came." Although the ATS was included in the famous Judiciary Act of 1789 which created the lower federal courts, the legislative rationale for the provision remains mysterious and there is little legislative history that might shed light on the question.
This makes the ATS a "Lohengrin" because Lohengrin is the title character from a Richard Wagner opera, itself based on a famous story that has appeared in many different versions throughout German literature. In the opera, Lohengrin's origins are a complete mystery until the end of the story, when his provenance is revealed (in fact his father is Parsifal, on which another Wagner opera is based). The origins of the ATS were just as mysterious -- one can only hope that the Supreme Court's case will have better luck unearthing its rationale.
In my opinion, the Lohengrin metaphor (which has been repeated by many academics) extends far deeper than most people realize and might actually shed some light on how the Supreme Court is going to approach the issue. Let me explain why.
One day, Elsa is accused by her guardian, Count Telramund, of murdering her own brother, Gottfried, who is the rightful heir to the throne of the kingdom and has gone missing.
Elsa requests a trial by combat (an interesting example of Jim Whitman's fascinating new book called The Verdict of Battle). Her guilt or innocence will be determined by a duel, and Count Telramund asks who she has selected to fight on her behalf. She responds that she had a dream that she would be saved by a knight, who in fact appears before her, and agrees to fight Count Telramund on her behalf on condition that she not ask about his identity or origin.
The knight defeats Count Telramund in the duel, but does not kill him. So Elsa is vindicated and declared innocent. She falls in love with the knight and he proposes marriage, which she accepts.
Meanwhile, Count Telramund schemes to take over the kingdom, and also schemes with his wife to find a way to get Elsa to ask the knight for his identity and origin, knowing that this will destroy the marriage. Count Telramund and his wife sow seeds of doubt in Elsa's mind in order to trick her to ask the knight the forbidden questions.
Elsa finally does ask him. Meanwhile Count Telramund's coup attempt has finally been set in motion, and when his troops storm the castle, Elsa throws a sword to the knight, who uses it to kill Count Telramund and stop the coup. The knight reports to the king that he has stopped the coup attempt, but he must now return to his homeland, the temple of the Holy Grail, because he has revealed his identity as Lohengrin.
But before he departs, Lohengrin prays, bringing back Elsa's brother, Gottfried. Gottfried was never dead at all. He had been turned into a swan by Count Telramund's wife who practices witchcraft. Upon seeing Gottfried being transformed back from being a swan, Telramund's wife dies. And Elsa, heartbroken over Lohengrin's departure, dies as well.
Now here's the moral that I take from this story, which I think is very relevant to the judicial function of the ATS. Lohengrin is an outsider that comes to vindicate Elsa and bring her justice. And this he does remarkably well: he wins her battle/trial and she is declared innocent of her brother's murder. Not only that, but Lohengrin also completes the task by bringing her brother back to life, and saves the kingdom from Count Telramund's treachery.
However, this judicial intervention, by an outsider, comes with many costs, and Elsa ends up heartbroken and dead when she is unwilling or unable to live up to the conditions. And Lohengrin must sacrifice much too. It isn't easy being the far-away vindicator of a kingdom's disputes.
This is precisely what the ATS is all about. The Statue provides, at least in its post-Filartiga instantiation, a forum in the US to settle disputes and vindicate the human rights of litigants in distant lands. However, when the US exercises this type of universal jurisdiction, it comes with great costs.
If I were a clerk working for one of the conservative justices seeking to trim back on the alleged excesses of ATS litigation, here's how I would pitch the argument. Back in Sosa v. Alvarez-Machain, in 2004, the Supreme Court invoked Blackstone for the proposition that the ATS was designed to offer a domestic remedy for international violations because doing so was sometimes necessary to stop an international crisis from erupting. However, ATS cases have gotten out of hand, and US courts are now intervening in cases all around the world, potentially irking foreign governments and courts, and in the process creating the very rifts that the ATS was designed to avoid. In order to vindicate the original Blackstonian rationale for the ATS as expressed in Sosa v. Alvarez-Machain, we need to limit ATS jurisdiction to cases that have at least some connection to US territory. Or so I think the conservative justices will argue. (I am not endorsing this view, just explaining it.)
On this theory, although we might be tempted to use the federal judiciary, like Lohengrin the outsider, to vindicate foreign rights violations, such interventions are messy and result in tremendous heartache and death.