Is The ‘Mother Of All Corporate Immunity’ Cases About To Get Even Worse?

Last week, the Supreme Court heard the “mother of all corporate immunity” cases, a case that literally presents the question of whether oil companies that engage in torture are immune from a federal law holding the most atrocious human rights violators accountable to international norms. After last week’s oral argument, it was clear the case did not go well. The Court appeared poised to hold that corporations — all corporations — are immune from this law altogether.

Now, however, it could be much worse. Yesterday, the Supreme Court issued an order asking for additional briefing in the case and opening up the possibility that they could go much further than simply immunizing corporations from following this law:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

To translate this a bit, when the Supreme Court agrees to hear a case, they normally announce which “questions presented” they will decide. Originally, the primary question presented in this case was whether or not corporations can be held accountable for “violations of the law of nations such as torture, extrajudicial executions or other crimes against humanity” in U.S. court. Yesterday, however, the Court expanded this inquiry into whether anyone can be held accountable for major human rights violations abroad. The Court could very well hold that corporations are immune from accountability under the law holding human rights violators accountable — and so is everyone else.

To be fair, there is a narrow ground that would allow the justices to dispose of this case without causing as much harm to international human rights standards. The case involves a foreign corporation that committed its alleged actions on foreign soil, so it is not entirely certain that American courts can reach its actions anyway. Yet, even if the Court were to kick the case on this relatively narrow ground, it might only delay a future when American corporations that torture foreigners abroad would also be free to go about their business. Even as the Court is considering how to dispose of this current case, another, very similar case was recently decided by a lower court that also involves allegations of mass atrocities perpetrated by a corporation. Unlike the current case, however, this other case involves Exxon — an American corporation.

In other words, the Supreme Court could immunize foreign corporations from the law today, and then use Exxon’s case to immunize American corporations tomorrow.