Online Workshop Comment: The Import of Scalia’s Concurrence

The comments thus far have been quite interesting and I am very pleased that David Moore and Beth Stephens are participating in this online workshop with us on the forthcoming article by Curtis Bradley, Jack Goldsmith, and David. For the sake of space, I will not discuss my points of agreement with the article and will simply pose a question.

My main contribution to the discussion is to emphasize the distinction between the authors’ view of the majority opinion in Sosa with the concurring view by Justice Scalia (joined by Chief Justice Rehnquist and Justice Thomas). It seems that Scalia’s view of what the majority was doing in Sosa is quite different from the authors’ views. Justice Scalia understands the majority to be emphasizing common-law-making continuity that “places the law of nations on a federal-law footing unknown to the First Congress.” He states that a judicially created federal rule based on international norms would be supreme federal law that arises under the laws of the United States. He laments the false continuity applied by the majority through the interchangeable use of the unadorned phrase “common law” throughout the majority opinion. He says the majority is recognizing federal law-making authority that is non-existent under a general common law approach. He further suggests that the majority’s approach would mean that “law-of-nations claims” create federal question jurisdiction under Section 1331, rendering ATS jurisdiction superfluous as of 1875. The gist of what I am saying is that the three concurring justices do not seem to share the three authors’ perspective of what the majority was doing.

The authors do discuss Scalia’s concurrence at various points, but they appear to not seriously grapple with the core of Scalia’s objections to the majority opinion. They do address the majority’s rejoinder to Scalia in the section on the modern position’s counterarguments (concerning two centuries of continuity and the reference to Sabbatino), but they do not wrestle with the full import of Scalia’s reading of the majority. I’m curious whether the authors disagree with Scalia’s take on what the majority was doing, or if they read him differently from me.