Justice Thomas and Justice Stevens Switch Pens (or Law Clerks)

In its last remaining international law-related decision for this year, the U.S. Supreme Court ruled today (India v. City of New York) that foreign sovereigns are not immune from domestic lawsuits seeking to establish the legal validity of tax liens on real property.

The case turns on the interpretation of the “immovable property” exception to the general rule of foreign sovereign immunity granted by the Foreign Sovereign Immunities Act (FSIA). The majority, in an opinion by Justice Thomas, found that the text of the exception encompassed not just claims for title in real property, but tax liens as well.

No doubt there is a lot to analyze here. Let me just focus on one aspect: the Court’s treatment of the views of the Executive Branch.

In an odd reversal of roles, the dissenters, in an opinion by Justice Stevens, the author of Hamdan v. Rumsfeld, relied on the views of the Executive Branch as to the scope of the immunities here, to reach his conclusion. On the other hand, Justice Thomas, who complained (rightly in my view) about the lack of deference to the Executive in Hamdan, does not even acknowledge that the Court is adopting an interpretation at odds with the Executive Branch here. Did the justices trade law clerks, just for fun?