Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Understanding Upcoming Supreme Court Decisions, Part II

Julia K. Stronks


January 18, 2013

By Julia K. Stronks

This is the second of a two-part series highlighting important issues before the Supreme Court.

With a docket that covers affirmative action, same sex marriage and voting rights, it seems likely that this spring our attention to the Supreme Court will be domestically focused. However, there are two cases with international implications that are also significant. They concern procedural issues that determine whether litigants even get to bring their complaint to a court. Both of these cases deal with “standing” or “jurisdiction,” which on the face of things might seem boring.  Standing exists when a plaintiff can show harm from the action of a defendant. Jurisdiction is the court’s legal permission to hear a case, usually granted by statute.  If standing or jurisdiction are found to be lacking, the merits of the case will not go forward, and the litigants will not be heard.

In Kiobel v Royal Dutch Petroleum a group of Nigerian litigants claim that the Dutch Royal Petroleum company helped the Nigerian government violate international law in the 1990s. The violations of law cover a number of different areas, but for purposes of this case the focus is on alleged torture and murder committed by representatives of the government. Though all of these acts occurred off U.S. soil and by non-U.S. citizens, the Nigerians now live in the United States and the oil company has holdings here. The case considers whether and under what circumstances the Alien Tort Statute should allow U.S. courts to have jurisdiction over corporations accused of human rights abuses in foreign countries. 

The Alien Tort Statute was passed in 1789 and says that our courts will have jurisdiction when “aliens” commit torts in violation of the law of nations. Before the Court will determine whether corporations can be “aliens,” it must first decide whether to grant jurisdiction to the Nigerian plaintiffs. Until now, the Alien Tort Statute has mostly been interpreted by lower courts which have split in their interpretation of its meaning.

In Clapper v Amnesty International a group of lawyers and journalists have brought a lawsuit against the government for what some call “global spying.” After the terrorist attacks of 9/11, the federal government began electronic surveillance of telephone calls, the Internet, cable transmissions and other international communication. Under current law American citizens cannot be targeted without a warrant. However, if people or businesses who are not American are targeted without a warrant, the surveillance could reveal attorney/client or other protected communications with American professionals. No one really knows the limit of the surveillance.  In the lower courts over the last 10 years a number of lawsuits have been brought to force the government to explain what it is doing. 

Ultimately in Clapper, the Supreme Court will be asked about the constitutionality of the government monitoring of international communication, but this case before the Court will determine first whether anyone has standing to even bring such a lawsuit.  The government is saying that the lawyers and journalists have not been harmed by the surveillance so the case should not be heard.

Our government is based on the belief that human beings are flawed and that concentrated power is dangerous because all of us are sometimes tempted to abuse the power we have over others.  This is in line with a biblical understanding of the fall, and the American solution for concentrated power can be seen as one tool to work toward public justice. When the framers set up a Constitution that emphasized separation of powers, they knew that courts would be one of the ways by which legislators would be held accountable.  This is why access to the courts is so important.

I believe that public justice requires a broad interpretation of standing and jurisdiction, particularly when parties have little recourse to other forums for redress. The Nigerians cannot have their case heard by the International Court of Justice because that court takes only cases from nation states. In Clapper a narrow view on standing means that the petition claiming wrongdoing by the government may never be heard by anyone.

These two cases have important public justice implications. We should pay attention to them even though procedural issues may not seem to be very exciting. 

—Julia K. Stronks has practiced law and is the Edward B. Lindaman Chair and Professor of Political Science at Whitworth University.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”