According to reports, Kannon Shanmugam dropped out of arguing T.M. v. University of Maryland Medical System Corporation to focus on arguing Cisco Systems v. Doe. As things turned out, Elizabeth Prelogar subbed in for T.M., but lost the pro bono case. And Kannon won, big league. Cisco will be pleased.
Cisco is a major case that effectively slams the door shut on possible liability under the Alien Torts Statute. Businesses will no longer need to decide between providing lucrative settlements or rolling the dice on devastating litigation. But even more importantly, this ruling sends a clear signal to lower courts, including the Ninth Circuit: Bivens is on borrowed time. The Court stated the issue plainly:
While our cases at one time permitted courts to provide redress if Congress remained silent, “we have since rejected the practice of fashioningrights of action as we see fit,” FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. (2026). That is so because “[h]ome-grown causes of action are difficult to reconcile with ‘the Constitution’s separation of legislative and judicial power.'”
Fittingly, yesterday the Court granted Nielsen v. Watanabe, a Bivens case from, you guessed it, the Ninth Circuit. Cisco may have closed the door. Nielsen will hermetically seal the door across the board.
Let’s start with the vote count, which is a bit quirky. Justice Barrett’s majority opinion has six solid votes. There is no daylight between the Court’s conservatives on this issue. Justice Sotomayor wrote a full-throated dissent. Justice Jackson wrote separately, joined by Justice Kagan. I am a bit confused with how to score Jackson’s vote. The syllabus said Jackson “filed an opinion concurring in part and dissenting in part.” But the separate writing begins “concurring in judgment in part and dissenting in part.” I remain confused how a Justice can concur in “part” of a judgment. The Court issues a single judgment: affirm or reverse. Those judgments cannot be split into parts. The choice is binary: affirm or reverse. Still, a search reveals that is fairly common for a Justice to concur in part of a judgment.
In Cisco, Jackson agreed to reverse and remand the case to the Ninth Circuit because Cisco was not liable under the Torture Victim Protection Act. She wrote:
I therefore concur only in the judgment as to the majority’s TVPA holding.
But Jackson would not have remanded the case under the Alien Tort Statute, since she agrees with Justice Sotomayor.
I agree with JUSTICE SOTOMAYOR’s discussion of the Alien Tort Statute.
No matter how you slice it, Jackson voted to reverse and remand the case back to the Ninth Circuit. That is a reversal. Jackson should have said something to the effect of “concurring in part, dissenting in part, and concurring in judgment.” Jackson’s labeling strikes me as an effort to create some confusion over how she actually votes. There were some similar attempts to obfuscate the labelling in San Francisco v. EPA and Department of State v. Munoz.
Onto the merits. This is the sort of opinion where Justice Barrett can shine. It might be her best writing since CASA last term. Professor Barrett clearly thought about implied causes of action before she joined the bench. Moreover, unlike with Employment Division v. Smith, Barrett is proud to say how much she agrees with Justice Scalia. Now Barrett can elevate separate writings from Scalia, as well as Thomas, Gorsuch, and Kavanaugh to majority status. Justice Sotomayor expresses her palpable frustration with this sub silentio overruling of Sosa v. Alvarez-Machain (2004).
The Court nonetheless closes the courthouse doors not just to respondents, but to virtually every future litigant seeking redress for a violation of international law under the ATS. It thus overrules Sosa, without even acknowledging that it is doing so. Today’s decision marks yet anotherlow point in this Court’s esteem for its precedents. . . . . The majority instead turns down a different road, one paved not with the opinions of the Court, which are the law, but with the opinions of individual Justices, which are not. . . . These five opinions, however, are not, and never have been, the law.
The vote in Sosa was 6-3. Justice Souter kept Justices O’Connor and Kennedy on board by writing a narrow opinion that at least left the door opinion to recognizing new causes of action in the future. My general rule of thumb is that a precedent loses stare decisis value when all members of the Court’s majority have left the Court. Since Justice Breyer’s departure, the remaining Sosa majority was reduced to a null set. Perhaps the doctrine may be extended if a Justice’s clerk becomes a Justice, as is the case for Justices Gorsuch, Kavanaugh, Barrett, and Jackson. But, as they say, stare decisis is not an inexorable command.
Barrett also uses some nice turns of phrase. She refers to “judicial creativity,” a term I have used before. And she smacks down the dissent’s lack of “judicial humility”:
The dissent is confident about the ability of federal courts to “improve foreign relations” and make judgments that are “‘consonant with U. S. foreign policy interests.'” Post, at 16 (opinion of SOTOMAYOR, J.). The Constitution’s allocation of power, however, requires greater judicial humility.
Justice Sotomayor tries to return the volley, but she doesn’t clear the net:
The majority urges “judicial humility” when it comes to matters of foreign affairs. Ante, at 9, n. 1. True judicial humility, however, is following precedent and respecting the wisdom of the jurists who precede us.
Ah yes, the “jurists of wisdom,” including Justices O’Connor, Kennedy, and Souter who wrote Casey. That argument is not going to work. The entire notion of creating new causes of action is the anthesis to humility. These “jurists of wisdom” are injecting the judiciary into foreign disputes. It can never be humility to defer to judicial arrogance.
