Into the Deference Weeds in Kiobel

Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court.

Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.)

So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia).

GENERAL VERRILLI: I — I think Filartiga is the paradigm, and cases like Filartiga are the paradigm that — where we think ATS — ATS causes of action should be recognized.
JUSTICE SCALIA: General Verrilli, the -that’s — that is a new position for the — for the State Department, isn’t it?
GENERAL VERRILLI: It’s a new –
JUSTICE SCALIA: And for — and for the U.S. Government? Why should — why should we listen to you rather than the solicitors general who took the opposite position and the position taken by Respondents here in other cases, not only in several courts of appeals, but even up here.
GENERAL VERRILLI: Well, Justice Scalia, in a case like this one, in cases under the Alien Tort Statute, the United States has multiple interests. We certainly have foreign relations interests in avoiding friction with foreign governments; we have interests in avoiding subjecting United States companies to liability abroad. We also have interests in ensuring that our Nation’s foreign relations commitments to the rule of law and human rights are not eroded.
JUSTICE SCALIA: I understand that, but –
GENERAL VERRILLI: It’s my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law.
JUSTICE SCALIA: It — it was –
GENERAL VERRILLI: And we have done so.
JUSTICE SCALIA: — it was the responsibility of your predecessors as well, and they took a different position. So, you know, why — why should we defer to the views of — of the current administration?
GENERAL VERRILLI: Well, because we think they are persuasive, Your Honor.
JUSTICE SCALIA: Oh, okay. [Laughter in the court]
CHIEF JUSTICE ROBERTS: Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.

Verrilli didn’t respond to that notion directly, and discussion soon went on to a different topic. But I’m left wondering about the import of this line of questioning. One, not especially charitable, reading of the colloquy is that Justice Scalia prefers the previous administrations’ views to the one put forward by the Obama Administration in this case. He thinks the earlier administrations were right, and this one is wrong. Or at least, that he’d be more inclined to “defer” to the aggregate majority view of recent executives than the view of any single outlier executive, like that of this administration in this case.

I’d doubt that’s a fair reading. As Justice Scalia later notes when the issue comes around again: “we [the justices] are not very good at figuring out the foreign policy interests of the United States.” This suggests his concern goes more to an assessment of the comparative competence of the judicial branch; courts aren’t good at this stuff, the executive is. But then, of course, why wouldn’t he want exactly the rule Verrilli proposes? That is, an interpretation of the ATS statute that leaves the door open to some ATS claims, but allows the more competent branch, the executive, to close the door when foreign policy concerns demand.

On a second reading, then, Justice Scalia’s question is one in the interest of the rule of law. What kind of stability, predictability could there be to an interpretation of a statute that effectively says the courts’ jurisdiction depends on the particular administration’s view of American foreign policy interests in a particular case – especially when it is clear that administrations differ in their assessments of U.S. foreign policy interests? If this was the point, then I’m sympathetic. I’ve always thought it kind of central to the definition of rule of law that it involved the application of rules known to all parties in advance, applied to similarly situated parties similarly. A civil enforcement mechanism that turns on which executive happens to be in office when the case comes to court sounds not so much law-like in its operation as arbitrary.

But I think a third reading is most likely, and, interestingly, least consistent with what I’d always understood Justice Scalia to think about the role of judicial deference to the executive. What I think Justice Scalia is getting at here is the idea that executive views that change over time, that are inconsistent or conflicting with previously held views, are less persuasive than executive views that are relatively stable. In the domestic administrative law context, plenty of scholars (and justices over the years) have taken the view that executive agency views are less entitled to deference if they have not been consistently held. Justice Scalia has not generally been of this view. Justice Scalia has generally been a fan of deference to the executive in these expert agency cases, and for that matter in a variety of other foreign policy-type cases as well, not because of any estimation about the relative persuasiveness of the executive’s view, but because it’s the executive that holds it.

So maybe this is just Justice Scalia giving Verrilli a hard time. That is, after all, kinda the point of the exercise. Or maybe this is something new. A Justice Scalia who thinks there’s more required to justify judicial deference to the executive’s view – something like an evaluation of “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” I guess I kinda doubt it. But one can always dream.