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ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 29, 2004]
Justice Scalia, with whom The Chief Justice and Justice Thomas join, concurring in part and concurring in the judgment.
There is not much that I would add to the Court’s detailed opinion, and only one thing that I would subtract: its reservation of a discretionary power in the Federal Judiciary to create causes of action for the enforcement of international-law-based norms. Accordingly, I join Parts I, II, and III of the Court’s opinion in these consolidated cases. Although I agree with much in Part IV, I cannot join it because the judicial lawmaking role it invites would commit the Federal Judiciary to a task it is neither authorized nor suited to perform.
I
The question at hand is whether the Alien Tort Statute (ATS), 28 U.S.C. § 1350 provides respondent Alvarez-Machain a cause of action to sue in federal court to recover money damages for violation of what is claimed to be a customary international law norm against arbitrary arrest and detention. The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Ibid. The challenge posed by this case is to ascertain (in the Court’s felicitous phrase) “the interaction between the ATS at the time of its enactment and the ambient law of the era.” Ante, at 19. I begin by describing the general principles that must guide our analysis.
At the time of its enactment, the ATS provided a federal forum in which aliens could bring suit to recover for torts committed in “violation of the law of nations.” The law of nations that would have been applied in this federal forum was at the time part of the so-called general common law. See Young, Sorting out the Debate Over Customary International Law, 42 Va. J. Int’l L. 365, 374 (2002); Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 824 (1997); Brief for Vikram Amar et al. as Amici Curiae 12—13.
General common law was not federal law under the Supremacy Clause, which gave that effect only to the Constitution, the laws of the United States, and treaties. U.S. Const., Art VI, cl. 2. Federal and state courts adjudicating questions of general common law were not adjudicating questions of federal or state law, respectively–the general common law was neither. See generally Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1279—1285 (1996). The nonfederal nature of the law of nations explains this Court’s holding that it lacked jurisdiction in New York Life Ins. Co. v. Hendren, 92 U.S. 286 (1876), where it was asked to review a state-court decision regarding “the effect, under the general public law, of a state of sectional civil war upon [a] contract of life insurance.” Ibid. Although the case involved “the general laws of war, as recognized by the law of nations applicable to this case,” ibid., it involved no federal question. The Court concluded: “The case, … having been presented to the court below for decision upon principles of general law alone, and it nowhere appearing that the constitution, laws, treaties, or executive proclamations, of the United States were necessarily involved in the decision, we have no jurisdiction.” Id., at 287.
This Court’s decision in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), signaled the end of federal-court elaboration and application of the general common law. Erie repudiated the holding of Swift v. Tyson, 16 Pet. 1 (1842), that federal courts were free to “express our own opinion” upon “the principles established in the general commercial law.” Id., at 19, 18. After canvassing the many problems resulting from “the broad province accorded to the so-called ‘general law’ as to which federal courts exercised an independent judgment,” 304 U.S., at 75, the Erie Court extirpated that law with its famous declaration that “[t]here is no federal general common law.” Id., at 78. Erie affected the status of the law of nations in federal courts not merely by the implication of its holding but quite directly, since the question decided in Swift turned on the “law merchant,” then a subset of the law of nations. See Clark, supra, at 1280—1281.
After the death of the old general common law in Erie came the birth of a new and different common law pronounced by federal courts. There developed a specifically federal common law (in the sense of judicially pronounced law) for a “few and restricted” areas in which “a federal rule of decision is necessary to protect uniquely federal interests, and those in which Congress has given the courts the power to develop substantive law.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981) (internal quotation marks and citation omitted). Unlike the general common law that preceded it, however, federal common law was self-consciously “made” rather than “discovered,” by judges who sought to avoid falling under the sway of (in Holmes’s hyperbolic language) “[t]he fallacy and illusion” that there exists “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.” Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (dissenting opinion).
Because post-Erie federal common law is made, not discovered, federal courts must possess some federal-common-law-making authority before undertaking to craft it. “Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision.” Milwaukee v. Illinois, 451 U.S. 304, 312 (1981).
The general rule as formulated in Texas Industries, 451 U.S., at 640—641, is that “[t]he vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law.” This rule applies not only to applications of federal common law that would displace a state rule, but also to applications that simply create a private cause of action under a federal statute. Indeed, Texas Industries itself involved the petitioner’s unsuccessful request for an application of the latter sort–creation of a right of contribution to damages assessed under the antitrust laws. See id., at 639—646. See also Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 99 (1981) (declining to create a federal-common-law right of contribution to damages assessed under the Equal Pay Act and Title VII).
The rule against finding a delegation
of substantive lawmaking power in a grant of jurisdiction is
subject to exceptions, some better established than others.
The most firmly entrenched is admiralty law, derived from the
grant of admiralty jurisdiction in Article III, §2,
cl. 3, of the Constitution. In the exercise of that
jurisdiction federal courts develop and apply a body of general
maritime law, “the well-known and well-developed venerable
law of the sea which arose from the custom among seafaring
men.” R. M. S. Titanic,
Inc. v. Haver, 171 F.3d 943, 960 (CA4 1999)
(Niemeyer, J.) (internal quotation marks omitted). At the
other extreme is Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S.
388 (1971), which created a private damages cause of action
against federal officials for violation of the Fourth Amendment.
We have said that the authority to create this cause of action
was derived from “our general jurisdiction to decide all
cases ‘arising under the Constitution, laws, or treaties
of the United States.’
II
With these general principles in mind,
I turn to the question presented. The Court’s detailed
exegesis of the ATS conclusively establishes that it is “a
jurisdictional statute creating no new causes of action.”
Ante, at 30. The Court provides a persuasive
explanation of why respondent’s contrary interpretation,
that “the ATS was intended not simply as a jurisdictional
grant, but as authority for the creation of a new cause of
action for torts in violation of international law,” is
wrong. Ante, at 18. Indeed, the Court properly
endorses the views of one scholar that this interpretation is
“
These conclusions are alone enough to dispose of the present case in favor of petitioner Sosa. None of the exceptions to the general rule against finding substantive lawmaking power in a jurisdictional grant apply. Bivens provides perhaps the closest analogy. That is shaky authority at best, but at least it can be said that Bivens sought to enforce a command of our own law–the United States Constitution. In modern international human rights litigation of the sort that has proliferated since Filartiga v. Pena-Irala, 630 F.2d 876 (CA2 1980), a federal court must first create the underlying federal command. But “the fact that a rule has been recognized as [customary international law], by itself, is not an adequate basis for viewing that rule as part of federal common law.” Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 Va. J. Int’l L. 513, 519 (2002). In Benthamite terms, creating a federal command (federal common law) out of “international norms,” and then constructing a cause of action to enforce that command through the purely jurisdictional grant of the ATS, is nonsense upon stilts.
III
The analysis in the Court’s opinion departs from my own in this respect: After concluding in Part III that “the ATS is a jurisdictional statute creating no new causes of action,” ante, at 30, the Court addresses at length in Part IV the “good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action” under the ATS. Ibid. (emphasis added). By framing the issue as one of “discretion,” the Court skips over the antecedent question of authority. This neglects the “lesson of Erie,” that “grants of jurisdiction alone” (which the Court has acknowledged the ATS to be) “are not themselves grants of law-making authority.” Meltzer, supra, at 541. On this point, the Court observes only that no development between the enactment of the ATS (in 1789) and the birth of modern international human rights litigation under that statute (in 1980) “has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.” Ante, at 30 (emphasis added). This turns our jurisprudence regarding federal common law on its head. The question is not what case or congressional action prevents federal courts from applying the law of nations as part of the general common law; it is what authorizes that peculiar exception from Erie’s fundamental holding that a general common law does not exist.
The Court would apparently find authorization in the understanding of the Congress that enacted the ATS, that “district courts would recognize private causes of action for certain torts in violation of the law of nations.” Ante, at 30. But as discussed above, that understanding rested upon a notion of general common law that has been repudiated by Erie.
The Court recognizes that Erie was a “watershed” decision heralding an avulsive change, wrought by “conceptual development in understanding common law … [and accompanied by an] equally significant rethinking of the role of the federal courts in making it.” Ante, at 31—32. The Court’s analysis, however, does not follow through on this insight, interchangeably using the unadorned phrase “common law” in Parts III and IV to refer to pre-Erie general common law and post-Erie federal common law. This lapse is crucial, because the creation of post-Erie federal common law is rooted in a positivist mindset utterly foreign to the American common-law tradition of the late 18th century. Post-Erie federal common lawmaking (all that is left to the federal courts) is so far removed from that general-common-law adjudication which applied the “law of nations” that it would be anachronistic to find authorization to do the former in a statutory grant of jurisdiction that was thought to enable the latter.*<* num="*"> Yet that is precisely what the discretion-only analysis in Part IV suggests.
Because today’s federal common law is not our Framers’ general common law, the question presented by the suggestion of discretionary authority to enforce the law of nations is not whether to extend old-school general-common-law adjudication. Rather, it is whether to create new federal common law. The Court masks the novelty of its approach when it suggests that the difference between us is that we would “close the door to further independent judicial recognition of actionable international norms,” whereas the Court would permit the exercise of judicial power “on the understanding that the door is still ajar subject to vigilant doorkeeping.” Ante, at 35. The general common law was the old door. We do not close that door today, for the deed was done in Erie. Supra, at 3. Federal common law is a new door. The question is not whether that door will be left ajar, but whether this Court will open it.
Although I fundamentally disagree with the discretion-based framework employed by the Court, we seem to be in accord that creating a new federal common law of international human rights is a questionable enterprise. We agree that:
These considerations are not, as the Court thinks them, reasons why courts must be circumspect in use of their extant general-common-law-making powers. They are reasons why courts cannot possibly be thought to have been given, and should not be thought to possess, federal-common-law-making powers with regard to the creation of private federal causes of action for violations of customary international law.
To be sure, today’s opinion does not itself precipitate a direct confrontation with Congress by creating a cause of action that Congress has not. But it invites precisely that action by the lower courts, even while recognizing (1) that Congress understood the difference between granting jurisdiction and creating a federal cause of action in 1789, ante, at 18, (2) that Congress understands that difference today, ante, at 34, and (3) that the ATS itself supplies only jurisdiction, ante, at 30. In holding open the possibility that judges may create rights where Congress has not authorized them to do so, the Court countenances judicial occupation of a domain that belongs to the people’s representatives. One does not need a crystal ball to predict that this occupation will not be long in coming, since the Court endorses the reasoning of “many of the courts and judges who faced the issue before it reached this Court,” including the Second and Ninth Circuits. Ante, at 38.
The Ninth Circuit brought us the
judgment that the Court reverses today. Perhaps its decision
in this particular case, like the decisions of other lower
federal courts that receive passing attention in the
Court’s opinion, “reflects a more assertive view of
federal judicial discretion over claims based on customary
international law than the position we take today.”
Ante, at 42—43, n. 27. But the verbal formula
it applied is the same verbal formula that the Court explicitly
endorses. Compare ante, at 38 (quoting In re
Estate of Marcos Human Rights Litigation, 25 F.3d 1467,
1475 (CA9 1994), for the proposition that actionable norms must
be “
The Second Circuit, which started the
Judiciary down the path the Court today tries to hedge in, is a
good indicator of where that path leads us: directly into
confrontation with the political branches. Kadic v.
Karad
Though it is not necessary to resolution of the present case, one further consideration deserves mention: Despite the avulsive change of Erie, the Framers who included reference to “the Law of Nations” in Article I, §8, cl. 10, of the Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the “discretion” endorsed by the Court. That portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates). Those accepted practices have for the most part, if not in their entirety, been enacted into United States statutory law, so that insofar as they are concerned the demise of the general common law is inconsequential. The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates. See generally Bradley & Goldsmith, Critique of the Modern Position, 110 Harv. L. Rev., at 831—837. The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty, see, e.g., Tex. Penal Code Ann. §12.31 (2003), could be judicially nullified because of the disapproving views of foreigners.
* *
We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today’s opinion approves that process in principle, though urging the lower courts to be more restrained.
This Court seems incapable of admitting that some matters–any matters–are none of its business. See, e.g., Rasul v. Bush, ante, p. ___; INS v. St. Cyr, 533 U.S. 289 (2001). In today’s latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that the ATS provides only jurisdiction, wags a finger at the lower courts for going too far, and then–repeating the same formula the ambitious lower courts themselves have used–invites them to try again.
It would be bad enough if there were some assurance that future conversions of perceived international norms into American law would be approved by this Court itself. (Though we know ourselves to be eminently reasonable, self-awareness of eminent reasonableness is not really a substitute for democratic election.) But in this illegitimate lawmaking endeavor, the lower federal courts will be the principal actors; we review but a tiny fraction of their decisions. And no one thinks that all of them are eminently reasonable.
American law–the law made by the people’s democratically elected representatives–does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal court. That simple principle is what today’s decision should have announced.
Notes
*. * The Court conjures the illusion of common-law-making continuity between 1789 and the present by ignoring fundamental differences. The Court’s approach places the law of nations on a federal-law footing unknown to the First Congress. At the time of the ATS’s enactment, the law of nations, being part of general common law, was not supreme federal law that could displace state law. Supra, at 2—3. By contrast, a judicially created federal rule based on international norms would be supreme federal law. Moreover, a federal-common-law cause of action of the sort the Court reserves discretion to create would “arise under” the laws of the United States, not only for purposes of Article III but also for purposes of statutory federal-question jurisdiction. See Illinois v. Milwaukee, 406 U.S. 91, 99—100 (1972). The lack of genuine continuity is thus demonstrated by the fact that today’s opinion renders the ATS unnecessary for federal jurisdiction over (so-called) law-of-nations claims. If the law of nations can be transformed into federal law on the basis of (1) a provision that merely grants jurisdiction, combined with (2) some residual judicial power (from whence nobody knows) to create federal causes of action in cases implicating foreign relations, then a grant of federal-question jurisdiction would give rise to a power to create international-law-based federal common law just as effectively as would the ATS. This would mean that the ATS became largely superfluous as of 1875, when Congress granted general federal-question jurisdiction subject to a $500 amount-in-controversy requirement, Act of Mar. 3, 1875, §1, 18 Stat. 470, and entirely superfluous as of 1980, when Congress eliminated the amount-in-controversy requirement, Pub. L. 96—486, 94 Stat. 2369.