On Tuesday, on June 23, the U.S. Supreme Court issued its decision in Cisco Systems, Inc. v. Doe. Writing for a six-member majority, Justice Amy Coney Barrett held that federal courts may not hear human rights claims under the Alien Tort Statute (ATS), effectively overruling the Court’s prior decision in Sosa v. Alvarez-Machain (2004). “Today, we close the door that Sosa cracked,” she wrote, “and hold that courts may not create new causes of action for violations of international norms.” The Court also held, by a larger majority, that aiding-and-abetting claims are not actionable under the Torture Victim Protection Act (TVPA), which creates an express cause of action against any individual who “subjects” another to torture or extrajudicial killing under color of foreign law.
Justice Sonia Sotomayor dissented. She was joined by Justices Elena Kagan and Ketanji Brown Jackson with respect to the ATS but not the TVPA. Justice Jackson wrote separately to explain why she and Justice Kagan agreed with the majority that aiding-and-abetting claims may not be brought under the TVPA, although they disagreed with the majority’s reasoning and so concurred only in that result.
The Cisco decision brings an end to the era of human rights litigation under the ATS that began with the Second Circuit’s decision in Filartiga v. Pena-Irala (1980). Going forward, it seems likely that human rights cases in U.S. courts will rely on statutory causes of action, such as the TVPA and the Trafficking Victims Protection Reauthorization Act (TVPRA), or on causes of action under foreign law.
From Sosa to Cisco
A part of the Judiciary Act of 1789 that established the federal courts, the ATS grants federal courts subject matter 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.” The first Congress was likely thinking about violations of safe conducts, infringements of the rights of ambassadors, and piracy, which William Blackstone had identified as the principal offenses against the law of nations, although the statutory text speaks in more general terms.
In Sosa, the Supreme Court recognized that the ATS was a purely jurisdictional statute but also that it was “enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.” Erie Railroad v. Tompkins (1938) put an end to the era of general common law in which the ATS was passed. So, to give effect to the first Congress’s understanding, Sosa recognized an implied cause of action under federal common law for claims “based on the present-day law of nations” if those claims “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms.” The door for claims based on modern international law, the Court wrote, “is still ajar subject to vigilant doorkeeping.”
Justice Antonin Scalia disagreed. In his view, Erie wrought an “avulsive change” that closed the door on the kind of common law claims the first Congress had in mind, and he would not have compensated by creating a federal common law cause of action in their place. Justice Scalia’s opinion, however, did not command a majority and was joined only by Chief Justice William Rehnquist and Justice Clarence Thomas.
Later federal court decisions read Sosa as establishing a two-step framework. First, a plaintiff must show that the norm violated is generally accepted and specifically defined. (Disclosure: I wrote an amicus brief in support of respondents arguing that aiding-and-abetting satisfied the first step, a question the Court in Cisco did not reach.) Second, a court must determine whether recognizing a cause of action is a proper exercise of judicial discretion.
The Supreme Court subsequently exercised its discretion to narrow the ATS cause of action substantially. In Kiobel v. Royal Dutch Petroleum Co. (2013), the Court applied the presumption against extraterritoriality to the ATS cause of action. In Jesner v. Arab Bank, PLC (2018), the Court held that the cause of action did not apply to foreign corporations. And in Nestlé, U.S.A., Inc. v. Doe (2021), the Court required substantial conduct in the United States.
Along the way, some Justices argued that Sosa was wrongly decided and that the ATS cause of action should be limited to the Blackstone’s three torts. Justice Clarence Thomas, joined by Justices Neil Gorsuch and Brett Kavanaugh, said as much in Nestlé, and Justice Samuel Alito also seemed sympathetic. But this position never commanded a majority of the Court. The Chief Justice and Justice Barrett declined to join the part of Justice Thomas’s opinion in Nestlé calling for Sosa to be overruled.
Overruling Sosa
That changed in Cisco, an opinion written by Justice Barrett and joined by the Chief Justice, as well as the others who had expressed doubts about Sosa’s correctness. Cisco adopts the position urged by Justice Scalia in Sosa and Justice Thomas in Nestlé, limiting the ATS cause of action to the Blackstone three.
“Two points drive our decision today,” Justice Barrett explained. “First, judicial authority under Sosa’s second step was ‘narrow at the outset’” (quoting Justice Thomas’s plurality opinion in Nestlé). “ATS cases by their nature implicate foreign policy,” she continued, and it is “difficult to think of a case in which a court might safely conclude that a new ATS cause of action would not have detrimental foreign policy consequences” (quotation marks omitted).
Second, “the power to create causes of action belongs to Congress.” In recent years, the Court has declined to create causes of action where Congress has not done so, reasoning that “Congress is better positioned than courts to evaluate the policy tradeoffs of creating liability.” “This is especially true in an area like this one, where the Constitution expressly delegates authority to Congress,” Justice Barrett explained, citing the Constitution’s Offenses Clause.
Besides foreign policy considerations, Justice Barrett added another reason not to imply a cause of action for human rights violations—because Congress has created “an alternative remedial structure” in the TVPA. Of course, this reasoning ignores the TVPA’s clear aim to supplement the ATS rather than to replace it. The House Committee Report stated:
“At the same time, claims based on torture and summary executions do not exhaust the list of actions that may appropriately be covered be[sic] section 1350. That statute should remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law.”
(See also the Senate Committee Report discussing favorably the Filartiga line of cases and the role of federal common law.)
Justice Barrett tried to avoid explicitly overruling Sosa:
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 three. We conclude only that Sosa was overly optimistic in its prediction that there might be a narrow class of cases in which courts may create ATS actions without infringing on the prerogatives of the political branches. In truth, this class is a null set.
But, as Justice Sotomayor pointed out in dissent, “[t]he Sosa majority expressly rejected the call to stop at the Blackstone three, dismissing Justice Scalia’s position as ‘particularly unconvincing in light of what we know about congressional understanding bearing on this issue’” (quoting Sosa). Cisco thus “overrules Sosa,” she noted, “without even acknowledging that it is doing so.”
“The majority’s apparent disregard for stare decisis is particularly lamentable here,” Justice Sotomayor explained, “because this Court has long held that stare decisis has special force as to decisions interpreting congressional statutes” (quotation marks omitted). After all, if the Supreme Court misinterprets a statute, Congress can amend the law. Yet Congress has not “amended the ATS or passed other legislation that undercuts Sosa’s holding.”
Sosa’s overruling is particularly surprising given the questions that Chief Justice Roberts and Justice Barrett asked at oral argument. “[U]sually when we overrule a past decision it’s because we think it was wrong,” the Chief Justice told the lawyer representing the United States as amicus curiae. “[A]nd we’re not saying that the Sosa decision was wrong when it interpreted the intent of the First Congress.”
For her part, Justice Barrett observed that “the puzzle of this case” is what to do in “the post-Erie world when the Alien Tort Statute was enacted in the pre-Erie world.” Counsel for the respondents responded that Sosa addressed precisely that question when it recognized a federal common law cause of action giving effect to the understanding of the first Congress. Apparently, Justice Barrett concluded that the better answer was to close the door on modern international law claims based on what Justice Scalia termed Erie’s “avulsive change.”
To me, it has always seemed a strange sort of originalism that makes this kind of move—allowing later changes in judicial approaches to trump the meaning of earlier texts. The Sosa majority solved Justice Barrett’s puzzle by translating the ATS into modern terms. Justice Scalia, and now Justice Barrett, would instead allow subsequent developments to supersede the original understanding.
The TVPA
The other issue in Cisco was whether aiding-and-abetting claims can be brought under the TVPA. This is a different question because it involves an express cause of action rather than an implied one. The TVPA creates a cause of action against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation … subjects an individual to torture … or … extrajudicial killing.”
Writing for the majority, Justice Barrett invoked Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. (1994) for the proposition that civil statutes do not create aiding-and-abetting liability unless they provide for it expressly. Justice Jackson, joined by Justice Kagan, responded that “the majority is wrong to treat Central Bank as creating a ‘magic words’ test for aiding-and-abetting liability generally.” She thought there was “no general presumption either way” but noted that Congress must still provide for such liability. In her view, the word “subjects” was not enough to create aiding-and-abetting liability, and she therefore concurred in the result with respect to the TVPA.
It was only Justice Sotomayor who thought that aiding-and-abetting claims should be actionable under the TVPA. “In ordinary meaning,” she wrote, “a person ‘subjects’ another to torture if he ‘consciously and culpably “participate[s]” in’ the torture ‘so as to help “make it succeed”’” (quoting Twitter, Inc. v. Taamneh (2023)).
Conclusion
The Supreme Court’s decision in Sosa, twenty-two years ago, was a landmark. It led to two decades of hard-fought litigation during which an increasingly conservative Supreme Court majority sought to claw back the ground that had been given to human rights claimants. The Court invested enormous resources in the effort, hearing four ATS cases after Sosa before finally putting the ATS to rest in Cisco. There is no telling what motivated Chief Justice Roberts and Justice Barrett to join the Sosa critics at last. But one thing seems certain: the Court will never have to hear another ATS case again.
