When a Supreme Court Justice tells you that a sentence in your brief is "striking," it's not always a good thing.
In fact, for Paul L. Hoffman, a lawyer trying to win a case before the court, it was a very bad thing.
Hoffman appeared before the Justices last February on behalf of 12 Nigerian plaintiffs who are seeking to sue a subsidiary of Shell Petroleum for allegedly aiding and abetting human rights violations in Nigeria between 1992 and 1995. At issue was whether corporations can be held liable in U.S. courts for human rights violations allegedly committed abroad.
But Justice Samuel Alito wondered what Hoffman's case was doing in U.S. courts in the first place.
"The first sentence in your brief in the statement of the case is really striking," Alito said, before reading the sentence: "This case was filed … by twelve Nigerian plaintiffs who alleged … that Respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship … in Nigeria between 1992 and 1995."
Here's what Alito wanted to know: "What business does a case like that have in the courts of the United States?"
A few days after arguments, the court made a rare request. Instead of deciding Hoffman's case , the court wanted both sides to submit new briefs on the bigger issue framed by Alito: why should a case with foreign petitioners and foreign respondents, alleging misconduct that took place abroad, be heard in a U.S. court.
Today, the justices met again, in starting their new term, to hear arguments on that question.
Hoffman argued a law passed by the First Congress in 1789 called the Alien Tort Statute (ATS) allows the courts to recognize a cause of action for violations of the laws of war outside the United States. The ATS says that district courts have jurisdiction "of any civil action by an alien for a tort only, committed in violations of the law of nations or a treaty of the United States."
The ATS had been unused for decades until the 1980s, when several courts allowed human rights cases to be brought under it.
On Monday, Justice Alito picked up where he left off last term: "Why does this case belong in the courts of the United States," he asked, "when it has nothing to do with the United States other than the fact that a subsidiary of the defendant has a big operation here?"
Other justices seemed skeptical of Hoffman's position.
Justice Anthony Kennedy asked Hoffman, "What effects that commenced in the United States or that are closely related to the United States exist between what happened here and what happened in Nigeria?"
Hoffman admitted that the "only connection" between the events in Nigeria and the United States is that the plaintiffs are now living here because they received asylum.
Justice Antonin Scalia said that national courts have been the deciders when a violation is alleged on American soil. But he was concerned about the turning-of-the-tables aspect of this case: "To give national courts elsewhere the power to determine whether a United States corporation in the United States has violated a norm of international law is something else, it seems to me."
Kathleen Sullivan, a lawyer for Shell, stood up and told the justices directly, "This case has nothing to do with the United States."
The U.S. government is asking the justices for a middle ground. Solicitor General Donald Verrilli said that the ATS does not mean foreign cases such as this one should automatically be heard in American courts. "There just isn't any meaningful connection to the United States," he said.
But he asked the justices to leave the door open for suits under the ATS when the connection to the United States is stronger.
The justices should decide the case by June.