Nestlé USA, Inc. v. Doe ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NESTLE USA, INC. v. DOE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–416. Argued December 1, 2020—Decided June 17, 2021*
Respondents are six individuals from Mali who allege that they were
trafficked into Ivory Coast as child slaves to produce cocoa. U. S.-based
companies Nestlé USA, Inc., and Cargill, Inc., do not own or operate
cocoa farms in Ivory Coast, but they do buy cocoa from farms located
there and provide those farms with technical and financial resources.
Respondents sued Nestlé, Cargill, and others under the Alien Tort
Statute (ATS)—which provides federal courts jurisdiction to hear
claims brought “by an alien for a tort only, committed in violation of
the law of nations or a treaty of the United States,” 28 U. S. C. §1350—
contending that this arrangement aids and abets child slavery. Be-
cause respondents’ injuries occurred overseas and the only domestic
conduct alleged by respondents was general corporate activity, the Dis-
trict Court dismissed the suit as an impermissible extraterritorial ap-
plication of the ATS under Kiobel v. Royal Dutch Petroleum Co., 569
U. S. 108. The Ninth Circuit held, as relevant, that respondents had
pleaded a domestic application of the ATS, as required by Kiobel, be-
cause the corporations’ major operational decisions originated in the
United States.
Held: The judgment is reversed, and the case is remanded.
929 F. 3d. 623, reversed and remanded.
JUSTICE THOMAS delivered the opinion of the Court with respect to
Parts I and II, concluding that respondents here improperly seek ex-
traterritorial application of the ATS. The Court’s two-step framework
for analyzing extraterritoriality issues first presumes that a statute
——————
* Together with No. 19–453, Cargill, Inc. v. Doe et al., also on certiorari
to the same court.
2 NESTLE USA, INC. v. DOE
Syllabus
applies only domestically and asks “whether the statute gives a clear,
affirmative indication” that rebuts the presumption. RJR Nabisco,
Inc. v. European Community, 579 U. S. 325, 337. As the Court has
already held, the ATS does not rebut the presumption of domestic ap-
plication. Kiobel, 569 U. S., at 124. In fact, the ATS does not expressly
“regulate conduct” at all, much less “evince a ‘clear indication of extra-
territoriality.’ ” Id., at 115–118. Second, where the statute, as here,
does not apply extraterritorially, plaintiffs must establish that “the
conduct relevant to the statute’s focus occurred in the United States
. . . even if other conduct occurred abroad.” RJR Nabisco, 579 U. S., at
337.
The parties dispute what conduct is relevant to the “focus” of the
ATS, but even if this dispute were resolved in respondents’ favor, their
complaint would impermissibly seek extraterritorial application of the
ATS. Nearly all the conduct they allege aided and abetted forced la-
bor—providing training, equipment, and cash to overseas farmers—
occurred in Ivory Coast. Pleading general corporate activity, like
“mere corporate presence,” Kiobel, 569 U. S., at 125, does not draw a
sufficient connection between the cause of action respondents seek and
domestic conduct. To plead facts sufficient to support a domestic ap-
plication of the ATS, plaintiffs must allege more domestic conduct than
general corporate activity common to most corporations. Pp. 3–5.
THOMAS, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I and II, in which ROBERTS,
C. J., and BREYER, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, and BAR-
RETT, JJ., joined, and an opinion with respect to Part III, in which GOR-
SUCH and KAVANAUGH, JJ., joined. GORSUCH, J., filed a concurring opin-
ion, in which ALITO, J., joined as to Part I, and in which KAVANAUGH, J.,
joined as to Part II. SOTOMAYOR, J., filed an opinion concurring in part
and concurring in the judgment, in which BREYER and KAGAN, JJ., joined.
ALITO, J., filed a dissenting opinion.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–416 and 19–453
_________________
NESTLE USA, INC., PETITIONER
19–416 v.
JOHN DOE I, ET AL.
CARGILL, INC., PETITIONER
19–453 v.
JOHN DOE I, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2021]
JUSTICE THOMAS announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
I and II, and an opinion with respect to Part III, in which
JUSTICE GORSUCH and JUSTICE KAVANAUGH join.
The Alien Tort Statute (ATS) gives federal courts juris-
diction to hear certain civil actions filed by aliens. 28
U. S. C. §1350. Although this jurisdictional statute does
not create a cause of action, our precedents have stated that
courts may exercise common-law authority under this stat-
ute to create private rights of action in very limited circum-
stances. See, e.g., Sosa v. Alvarez-Machain, 542 U. S. 692,
724 (2004); Hernández v. Mesa, 589 U. S. ___, ___, ___
(2020) (slip op., at 6, 14). Respondents here seek a judicially
created cause of action to recover damages from American
corporations that allegedly aided and abetted slavery
abroad. Although respondents’ injuries occurred entirely
2 NESTLE USA, INC. v. DOE
Opinion of the Court
overseas, the Ninth Circuit held that respondents could sue
in federal court because the defendant corporations alleg-
edly made “major operational decisions” in the United
States. The Ninth Circuit erred by allowing this suit to pro-
ceed.
I
According to the operative complaint, Ivory Coast—a
West-African country also known as Côte d’Ivoire—is re-
sponsible for the majority of the global cocoa supply. Re-
spondents are six individuals from Mali who allege that
they were trafficked into Ivory Coast as child slaves to pro-
duce cocoa.
Petitioners Nestlé USA and Cargill are U. S.-based com-
panies that purchase, process, and sell cocoa. They did not
own or operate farms in Ivory Coast. But they did buy cocoa
from farms located there. They also provided those farms
with technical and financial resources—such as training,
fertilizer, tools, and cash—in exchange for the exclusive
right to purchase cocoa. Respondents allege that they were
enslaved on some of those farms.
Respondents sued Nestlé, Cargill, and other entities, con-
tending that this arrangement aided and abetted child slav-
ery. Respondents argue that petitioners “knew or should
have known” that the farms were exploiting enslaved chil-
dren yet continued to provide those farms with resources.
App. 319. They further contend that petitioners had eco-
nomic leverage over the farms but failed to exercise it to
eliminate child slavery. And although the resource distri-
bution and respondents’ injuries occurred outside the
United States, respondents contend that they can sue in
federal court because petitioners allegedly made all major
operational decisions from within the United States.
The District Court dismissed this suit after we held that
the ATS does not apply extraterritorially. Kiobel v. Royal
Dutch Petroleum Co., 569 U. S. 108 (2013). It reasoned that
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
respondents sought to apply the ATS extraterritorially be-
cause the only domestic conduct alleged was general corpo-
rate activity. While this suit was on appeal, we held that
courts cannot create new causes of action against foreign
corporations under the ATS. Jesner v. Arab Bank, PLC, 584
U. S. ___ (2018). The Ninth Circuit then reversed the Dis-
trict Court in part. Although the Ninth Circuit determined
that Jesner compelled dismissal of all foreign corporate de-
fendants, it concluded that the opinion did not foreclose ju-
dicial creation of causes of action against domestic corpora-
tions. The Ninth Circuit also held that respondents had
pleaded a domestic application of the ATS, as required by
Kiobel, because the “financing decisions . . . originated” in
the United States. Doe v. Nestlé, S. A., 906 F. 3d 1120,
1124–1126 (2018); see also 929 F. 3d 623 (2019). We
granted certiorari, 591 U. S. ___ (2020), and now reverse.
II
Petitioners and the United States argue that respondents
improperly seek extraterritorial application of the ATS. We
agree.
Our precedents “reflect a two-step framework for analyz-
ing extraterritoriality issues.” RJR Nabisco, Inc. v. Euro-
pean Community, 579 U. S. 325, 337 (2016). First, we pre-
sume that a statute applies only domestically, and we ask
“whether the statute gives a clear, affirmative indication”
that rebuts this presumption. Ibid. For the ATS, Kiobel
answered that question in the negative. 569 U. S., at 124.
Although we have interpreted its purely jurisdictional text
to implicitly enable courts to create causes of action, the
ATS does not expressly “regulate conduct” at all, much less
“evince a ‘clear indication of extraterritoriality.’ ” Id., at
115–118. Courts thus cannot give “extraterritorial reach”
to any cause of action judicially created under the ATS. Id.,at 117–118. Second, where the statute, as here, does not
apply extraterritorially, plaintiffs must establish that “the
4 NESTLE USA, INC. v. DOE
Opinion of the Court
conduct relevant to the statute’s focus occurred in the
United States.” RJR Nabisco, 579 U. S., at 337. “[T]hen
the case involves a permissible domestic application even if
other conduct occurred abroad.” Ibid.
The parties dispute what conduct is relevant to the “fo-
cus” of the ATS. Respondents seek a judicially created
cause of action to sue petitioners for aiding and abetting
forced labor overseas. Arguing that aiding and abetting is
not even a tort, but merely secondary liability for a tort, pe-
titioners and the United States contend that “the conduct
relevant to the [ATS’s] focus” is the conduct that directly
caused the injury. See id., at 346 (a plaintiff who “does not
overcome the presumption against extraterritoriality . . .
therefore must allege and prove a domestic injury”). All of
that alleged conduct occurred overseas in this suit. The
United States also argues that the “focus” inquiry is beside
the point; courts should not create an aiding-and-abetting
cause of action under the ATS at all. See Central Bank of
Denver, N. A. v. First Interstate Bank of Denver, N. A., 511
U. S. 164, 182–183 (1994) (“[W]hen Congress enacts a stat-
ute under which a person may sue and recover damages
from a private defendant . . . , there is no general presump-
tion that the plaintiff may also sue aiders and abettors” be-
cause that would create a “vast expansion of federal law”).
For their part, respondents argue that aiding and abetting
is a freestanding tort and that courts may create a private
right of action to enforce it under the ATS. They also con-
tend that the “focus” of the ATS is conduct that violates in-
ternational law, that aiding and abetting forced labor is a
violation of international law, and that domestic conduct
can aid and abet an injury that occurs overseas.
Even if we resolved all these disputes in respondents’ fa-
vor, their complaint would impermissibly seek extraterrito-
rial application of the ATS. Nearly all the conduct that they
say aided and abetted forced labor—providing training, fer-
tilizer, tools, and cash to overseas farms—occurred in Ivory
Cite as: 593 U. S. ____ (2021) 5
Opinionof
Opinion ofTthe Court
HOMAS , J.
Coast. The Ninth Circuit nonetheless let this suit proceed
because respondents pleaded as a general matter that
“every major operational decision by both companies is
made in or approved in the U. S.” App. 314. But allegations
of general corporate activity—like decisionmaking—cannot
alone establish domestic application of the ATS.
As we made clear in Kiobel, a plaintiff does not plead facts
sufficient to support domestic application of the ATS simply
by alleging “mere corporate presence” of a defendant. 569
U. S., at 125. Pleading general corporate activity is no bet-
ter. Because making “operational decisions” is an activity
common to most corporations, generic allegations of this
sort do not draw a sufficient connection between the cause
of action respondents seek—aiding and abetting forced la-
bor overseas—and domestic conduct. “[T]he presumption
against extraterritorial application would be a craven
watchdog indeed if it retreated to its kennel whenever some
domestic activity is involved in the case.” Morrison v. Na-
tional Australia Bank Ltd., 561 U. S. 247, 266 (2010). To
plead facts sufficient to support a domestic application of
the ATS, plaintiffs must allege more domestic conduct than
general corporate activity. The Ninth Circuit erred when it
held otherwise.
III
Respondents’ suit fails for another reason, which does
not require parsing allegations about where conduct oc-
curred: We cannot create a cause of action that would let
them sue petitioners. That job belongs to Congress, not the
Federal Judiciary. Sosa indicated that courts may exercise
common-law authority under the ATS to create private
rights of action in very limited circumstances. 542 U. S., at
724. Sosa suggested, for example, that courts could recog-
nize causes of action for three historical violations of inter-
national law: “violation of safe conducts, infringement of
6 NESTLE USA, INC. v. DOE
Opinionof
Opinion ofTthe Court
HOMAS , J.
the rights of ambassadors, and piracy.” Ibid. But our prec-
edents since Sosa have clarified that courts must refrain
from creating a cause of action whenever there is even a
single sound reason to defer to Congress. See, e.g., Hernán-
dez, 589 U. S., at ___ (slip op., at 8). Tellingly, we have
never created a cause of action under the ATS. Even with-
out reexamining Sosa, our existing precedents prohibit us
from creating a cause of action here.
A
Originally passed as part of the Judiciary Act of 1789, the
ATS provides jurisdiction to hear claims brought “by an al-
ien for a tort only, committed in violation of the law of na-
tions or a treaty of the United States.” 28 U. S. C. §1350.
If, for example, a treaty adopted by the United States cre-
ates a tort-related duty, federal district courts have juris-
diction to hear claims by aliens for breach of that duty.
But the statute on its own does not empower aliens to sue.
We have been clear that “the ATS is a jurisdictional statute
creating no new causes of action.” Sosa, 542 U. S., at 724.
Aliens harmed by a violation of international law must rely
on legislative and executive remedies, not judicial reme-
dies, unless provided with an independent cause of action.
In more than 200 years, Congress has established just one:
the Torture Victim Protection Act of 1991. That Act creates
a private right of action for victims of torture and extraju-
dicial killings in violation of international law. 106 Stat.
73, note following 28 U. S. C. §1350.
Because that cause of action does not apply here, re-
spondents ask us to create a new one. They suggest that a
plaintiff is entitled to a judicially created cause of action ab-
sent compelling reasons to withhold one. But our prece-
dents demand precisely the opposite rule.
In Sosa, we “assume[d]” that the First Congress, which
enacted the ATS, believed that federal courts, under gen-
eral common law, “would recognize private causes of action
Cite as: 593 U. S. ____ (2021) 7
Opinionof
Opinion ofTthe Court
HOMAS , J.
for certain torts in violation of the law of nations.” 542
U. S., at 724. Although our decision in Erie R. Co. v. Tomp-
kins, 304 U. S. 64 (1938), “denied the existence of any fed-
eral ‘general’ common law,” we suggested that a limited, re-
sidual amount remained to create causes of action for
violations of international law. Sosa, 542 U. S., at 726, 729.
We noted, for example, that courts in certain circumstances
likely could recognize causes of action for violations of three
historical torts: “violation of safe conducts, infringement of
the rights of ambassadors, and piracy.” Id., at 724.
At the same time, we stressed that this authority was
narrow. We noted that there was “no basis to suspect Con-
gress had any examples in mind beyond those [three] torts.”
Ibid. And we suggested that future “development” of law
might “preclud[e] federal courts from recognizing” new
causes of action. Id., at 724–725.
To guide our reasoning in the future, we described a two-
step test that plaintiffs must satisfy before a court can cre-
ate a cause of action under the ATS. First, the plaintiff
must establish that the defendant violated “ ‘a norm that is
specific, universal, and obligatory’ ” under international
law. Id., at 732. That norm must be “defined with a speci-
ficity comparable to” the three international torts known in
1789. Id., at 725. Second, the plaintiff must show that
courts should exercise “judicial discretion” to create a cause
of action rather than defer to Congress. Id., at 726, 736,
and n. 27; Jesner, 584 U. S., at ___–___ (plurality opinion)
(slip op., at 11–12).
Judicial authority under that test was narrow at the out-
set. Our more recent precedents have made it narrower
still by stressing that judicial creation of a cause of action
is an extraordinary act that places great stress on the sep-
aration of powers. Although this Court in the mid-20th cen-
tury often assumed authority to create causes of action,
Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 8),
8 NESTLE USA, INC. v. DOE
Opinionof
Opinion ofTthe Court
HOMAS , J.
“[i]n later years, we came to appreciate more fully the ten-
sion between this practice and the Constitution’s separa-
tion of legislative and judicial power,” Hernández, 589 U. S.,
at ___ (slip op., at 5). Because Erie denied the existence of
a federal general common law, “a federal court’s authority
to recognize a damages remedy must rest at bottom on a
statute enacted by Congress.” Hernández, 589 U. S., at
___–___ (slip op., at 5–6). It follows that any judicially cre-
ated cause of action risks “upset[ting] the careful balance of
interests struck by the lawmakers.” Ibid.To limit this stress on the separation of powers, our prec-
edents have made clear that the second step of Sosa—which
applies in any context where a plaintiff asks a court to cre-
ate a cause of action—is extraordinarily strict. A court
“ ‘must’ ” not create a private right of action if it can identify
even one “ ‘sound reaso[n] to think Congress might doubt
the efficacy or necessity of [the new] remedy.’ ” Jesner, 584
U. S., at ___ (majority opinion) (slip op., at 18) (quoting Ab-
basi, 582 U. S., at ___ (slip op., at 13)); see also Hernández,
589 U. S., at ___ (slip op., at 8) (same). This test is demand-
ing by design, and we have yet to find it satisfied. See Jes-
ner, 584 U. S., at ___ (slip op., at 27) (no judicially created
causes of action against foreign corporations); see also Sosa,
542 U. S., at 725 (no judicially created cause of action for
illegal detention even under the less-demanding standard
initially created by Sosa).
B
Regardless of whether respondents have satisfied the
first step of the Sosa test, it is clear that they have not sat-
isfied the second. Our decisions since Sosa, as well as con-
gressional activity, compel the conclusion that federal
courts should not recognize private rights of action for vio-
lations of international law beyond the three historical torts
identified in Sosa.
We recently identified a sound reason to think Congress
Cite as: 593 U. S. ____ (2021) 9
Opinionof
Opinion ofTthe Court
HOMAS , J.
might doubt a judicial decision to create a cause of action
that would enforce torts beyond those three: Creating a
cause of action under the ATS “inherent[ly]” raises “foreign-
policy concerns.” Jesner, 584 U. S., at ___ (majority opinion)
(slip op., at 19). This suit illustrates the point, for the alle-
gations here implicate a partnership (the Harkin-Engel
Protocol and subsequent agreements) between the Depart-
ment of Labor, petitioners, and the Government of Ivory
Coast. Under that partnership, petitioners provide mate-
rial resources and training to cocoa farmers in Ivory
Coast—the same kinds of activity that respondents contend
make petitioners liable for violations of international law.
Companies or individuals may be less likely to engage in
intergovernmental efforts if they fear those activities will
subject them to private suits.
Although specific foreign-policy concerns may vary from
case to case, our precedents are clear that creating a cause
of action to enforce international law beyond three histori-
cal torts invariably gives rise to foreign-policy concerns.
Ibid. (“foreign-policy . . . concerns [are] inherent in ATS lit-
igation”). Because “[t]he political branches, not the Judici-
ary, have the responsibility and institutional capacity to
weigh foreign-policy concerns,” there will always be a sound
reason for courts not to create a cause of action for viola-
tions of international law—other than perhaps for those
three torts that were well established in 1789. Id., at ___–
___ (slip op., at 18–19).
Congressional activity independently provides a sound
reason to conclude that Congress might doubt a judicially
created cause of action. It is instructive to consider the
changes Congress made to the remedies in the Trafficking
Victims Protection Reauthorization Act of 2003 (TVPRA),
which imposes liability for offenses related to human traf-
ficking. The initial text, passed in 2000, imposed criminal
liability for human trafficking. §112, 114 Stat. 1464. Con-
gress later added a private right of action in 2003, allowing
10 NESTLE USA, INC. v. DOE
Opinionof
Opinion ofTthe Court
HOMAS , J.
plaintiffs to sue the immediate “perpetrator” of a human
trafficking violation. §4(a)(4)(A), 117 Stat. 2878. And then
in 2008, Congress created the present private right of ac-
tion, allowing plaintiffs to sue defendants who are involved
indirectly with slavery. §§221, 222(b)(3), 122 Stat. 5067–
5068.
This Act highlights that there are many different ways to
create a cause of action that would enforce developments in
international law beyond the three historical torts identi-
fied in Sosa—too many for courts to choose from when using
the limited judicial discretion that Sosa recognizes. Con-
gress may well decide to create a cause of action against one
category of defendants but not another. See Jesner, 584
U. S., at ___ (plurality opinion) (slip op., at 20) (recognizing
that Congress “unambiguously” limited the only legislative
cause of action passed under the ATS to one category of de-
fendants). Or it might make distinctions—as it did in the
TVPRA—between direct and indirect liability. Congress
settled on the current approach to private remedies against
human trafficking only after its “understanding of the prob-
lem evolved” through years of studying “how to best craft a
response.” Brief for Members of Congress as Amici Curiae
9, 13. The judicial role is to resolve cases and controversies,
which typically present only the perspectives of the parties.
The Judiciary does not have the “institutional capacity” to
consider all factors relevant to creating a cause of action
that will “inherent[ly]” affect foreign policy. Jesner, 584
U. S., at ___ (majority opinion) (slip op., at 19). Respond-
ents attempt to brush aside these concerns by suggesting
that their allegations about decades-old conduct could sat-
isfy the TVPRA if Congress had enacted that law earlier.
This observation simply proves the point. Congress chose
not to write a retroactive statute. To create a cause of ac-
tion here would impermissibly second-guess Congress’ de-
cision not to subject past conduct to a new standard.
Cite as: 593 U. S. ____ (2021) 11
Opinionof
Opinion ofTthe Court
HOMAS , J.
When we decided Sosa, we remarked that there is “no ba-
sis to suspect Congress had any examples in mind beyond
th[ree] torts” when it enacted the ATS. 542 U. S., at 724.
We “assume[d]” that no “development” of law had yet “pre-
cluded federal courts from recognizing” causes of action not
created by Congress. Id., at 724–725. Nobody here has ex-
pressly asked us to revisit Sosa. But precedents since Sosa
have substantially narrowed the circumstances in which
“judicial discretion” under the Sosa test is permitted. Id.,
at 726, 736, and n. 27. Under existing precedent, then,
courts in some circumstances might still apply Sosa to rec-
ognize causes of action for the three historical torts likely
on the mind of the First Congress. But as to other torts, our
precedents already make clear that there always is a sound
reason to defer to Congress, so courts may not create a
cause of action for those torts. Whether and to what extent
defendants should be liable under the ATS for torts beyond
the three historical torts identified in Sosa lies within the
province of the Legislative Branch.
* * *
The judgment of the Court of Appeals is reversed, and the
cases are remanded for further proceedings.
It is so ordered.
Cite as: 593 U. S. ____ (2021) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–416 and 19–453
_________________
NESTLE USA, INC., PETITIONER
19–416 v.
JOHN DOE I, ET AL.
CARGILL, INC., PETITIONER
19–453 v.
JOHN DOE I, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2021]
JUSTICE GORSUCH, with whom JUSTICE ALITO joins as to
Part I, and with whom JUSTICE KAVANAUGH joins as to Part
II, concurring.
I write separately to add two points. First, this Court
granted certiorari to consider the petitioners’ argument
that the Alien Tort Statute (ATS) exempts corporations
from suit. Rather than resolve that question, however, the
Court rests its decision on other grounds. That is a good
thing: The notion that corporations are immune from suit
under the ATS cannot be reconciled with the statutory text
and original understanding. Second, the time has come to
jettison the misguided notion that courts have discretion to
create new causes of action under the ATS—for the reasons
JUSTICE THOMAS offers and others as well.
I
The First Congress enacted what we today call the ATS
as part of the Judiciary Act of 1789. At the time, the ATS
occupied only a paragraph in the larger statute, providing
federal courts jurisdiction “concurrent with the courts of the
2 NESTLE USA, INC. v. DOE
GORSUCH, J., concurring
several States” over “all causes where an alien sues for a
tort only in violation of the law of nations or a treaty of the
United States.” §9, 1 Stat. 77. The law has hardly changed
since and it remains similarly succinct: “The district courts
shall have original jurisdiction of any civil action by an al-
ien for a tort only, committed in violation of the law of na-
tions or a treaty of the United States.” 28 U. S. C. §1350.
Nothing in the ATS supplies corporations with special
protections against suit. The statute specifies which plain-
tiffs may sue (“alien[s]”). It speaks of the sort of claims
those plaintiffs can bring (“tort[s]” in “violation of the law
of nations or a treaty of the United States”). But nowhere
does it suggest that anything depends on whether the de-
fendant happens to be a person or a corporation.
Understandably too. Causes of action in tort normally
focus on wrongs and injuries, not who is responsible for
them. When the First Congress passed the ATS, a “tort”
meant simply an “injury or wrong” whoever committed it.
G. Jacob, O. Ruffhead, & J. Morgan, A Law Dictionary (10th
ed. 1773). Nothing has changed in the intervening centu-
ries. See, e.g., Black’s Law Dictionary 1717 (10th ed. 2014)
(a tort is a “civil wrong . . . for which a remedy may be ob-
tained”). Generally, too, the law places corporations and
individuals on equal footing when it comes to assigning
rights and duties. Even before the ATS’s adoption, Black-
stone explained that, “[a]fter a corporation is so formed and
named, it acquires many powers, rights, capacities, and in-
capacities,” including “[t]o sue or be sued, implead or be im-
pleaded, grant or receive, by its corporate name, and do all
other acts as natural persons may.” 1 W. Blackstone, Com-
mentaries on the Laws of England 463 (1765).
If more evidence were necessary to prove the point, plenty
would seem available. Case after case makes plain that,
“[a]t a very early period, it was decided in Great Britain, as
well as in the United States, that actions might be main-
Cite as: 593 U. S. ____ (2021) 3
GORSUCH, J., concurring
tained against corporations for torts . . . of nearly every va-
riety.” Philadelphia, W., & B. R. Co. v. Quigley, 21 How.
202, 210 (1859); see also, e.g., Chestnut Hill & Spring House
Turnpike Co. v. Rutter, 4 Serg. & Rawle 6, 17 (Pa. 1818)
(“[F]rom the earliest times to the present, corporations have
been held liable for torts”). Justice Story deemed the point
“unquestionable.” United States v. Amedy, 11 Wheat. 392,
412 (1826). And by the late 19th century, the proposition
that tort actions could be brought against corporations was
“so well settled as not to require the citation of any author-
ities.” Baltimore & Potomac R. Co. v. Fifth Baptist Church,
108 U. S. 317, 330 (1883).
More evidence yet lies in the circumstances surrounding
the ATS’s adoption. It seems Congress enacted the statute
as part of a comprehensive effort to ensure judicial recourse
for tortious conduct that otherwise could have provided for-
eign nations “with just cause for reprisals or war.” Bellia &
Clark, The Alien Tort Statute and the Law of Nations, 78
U. Chi. L. Rev. 445, 476–477 (2011); see Jesner v. Arab
Bank, PLC, 584 U. S. ___, ___–___ (2018) (GORSUCH, J., con-
curring in part and concurring in judgment). In particular,
Congress may have had an eye on three specific problems:
violations of safe conduct, interference with ambassadors,
and piracy. On the view of many, Blackstone included,
these three offenses entailed not just injuries to the affected
individuals but to their nation-states. 4 Commentaries on
the Laws of England 68 (1769). So, if Americans engaged
in them, and if American courts provided foreigners no re-
course of any kind, European powers would have had just
cause to bully the new Nation. Id., at 68–69.
In that context, distinguishing between individuals and
corporations would seem to make little sense. If early
Americans assaulted or abducted the French Ambassador,
what difference would it have made if the culprits acted in-
dividually or corporately? Either way, this Nation’s failure
4 NESTLE USA, INC. v. DOE
GORSUCH, J., concurring
to “oblige the guilty to repair the damage” would have pro-
vided just cause for reprisals or worse. 1 E. de Vattel,
The Law of Nations, bk. II, §76, p. 145 (1760). Founding-
era cases involving piracy seem to confirm the point too. In-
jured plaintiffs routinely brought in rem proceedings
against ships involved in piracy regardless of the owner’s
personal involvement or liability. See, e.g., Harmony v.
United States, 2 How. 210, 233–234 (1844). In fact, one of
the earliest ATS cases involved an action against a vessel.
See Jansen v. The Vrow Christina Magdalena, 13 F. Cas.
356, 358–359 (No. 7,216) (SC 1794). All of which under-
scores the ATS has never distinguished between defend-
ants.
II
The real problem with this lawsuit and others like it thus
isn’t whether the defendant happens to be a corporation. To
my mind, it’s this: Just as the ATS nowhere privileges cor-
porations, it nowhere deputizes the Judiciary to create new
causes of action. Rather, the statute confers “jurisdiction”
on federal courts to adjudicate “tort” claims by aliens for vi-
olations “of the law of nations.” Perhaps this language was
originally understood to furnish federal courts with author-
ity to entertain a limited number of specific and existing
intentional tort claims that, if left unremedied, could give
rise to reprisals or war. See Jesner, 584 U. S., at ___–___
(opinion of GORSUCH, J.); Bellia, 78 U. Chi. L. Rev., at 515–
521. Perhaps, too, the law affords federal courts jurisdic-
tion to hear any other tort claims Congress chooses to cre-
ate. But nothing in the statute’s terse terms obviously au-
thorizes federal courts to invent new causes of action on
their own.
Nor would I find such an extraordinary authority linger-
ing latent after all this time. This Court has never—not
once in 230 years—invoked the ATS to create a new cause
Cite as: 593 U. S. ____ (2021) 5
GORSUCH, J., concurring
of action. Of course, courts at common law may have en-
joyed the power to create (or “recognize”) causes of action.
But the power to create a cause of action is in every mean-
ingful sense the power to enact a new law that assigns new
rights and new legally enforceable duties. And our Consti-
tution generally assigns that power to Congress. A self-gov-
erning people depends on elected representatives—not
judges—to make its laws. So what may have been a
“ ‘proper function for common-law courts’ ” in England is no
longer generally appropriate “ ‘for federal tribunals’ ” in this
country. Alexander v. Sandoval, 532 U. S. 275, 287 (2001).
And it’s not as if we have ever, in over two centuries, faced
congressional rebuke for being asleep at the ATS switch.
Just the opposite: The one time Congress deemed a new
ATS action worth having, it created that action itself in the
Torture Victim Protection Act of 1991. See 106 Stat. 73.
To be sure, the Court recently complicated this picture in
Sosa v. Alvarez-Machain, 542 U. S. 692 (2004). There, the
Court recognized that federal judges usually may not in-
voke the ATS to create new causes of action. The Court also
refused to create the new cause of action the plaintiff pro-
posed. Id., at 725. But Sosa also proceeded to speculate
that—in some future case—this Court might invoke the
ATS to create a new cause of action. “The door,” Sosa said,
is “ajar subject to vigilant doorkeeping.” Id., at 729.
To what end? We have witnessed nearly two decades of
ATS litigation since Sosa. During that period, plaintiffs
have presented for this Court’s consideration one new po-
tential cause of action after another. Each time, the law-
yering has been thoughtful and able. Always, too, the pro-
posed cause of action is potentially worthy. Yet, in every
case, we have turned up our noses. I would stop feigning
some deficiency in these offerings. However vigilant the
doorkeeper, the truth is this is a door Sosa should not have
cracked. Whether and which international norms ought to
be carried into domestic law—and how best to accomplish
6 NESTLE USA, INC. v. DOE
GORSUCH, J., concurring
that goal while advancing this country’s foreign policy in-
terests—poses “delicate” and “complex” questions involving
“large elements of prophecy . . . for which the Judiciary has
neither aptitude, facilities nor responsibility.” Chicago &
Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S.
103, 111 (1948) (Jackson, J., for the Court). Were we to cre-
ate new causes of action, we would risk doing exactly what
Congress adopted the ATS to avoid: complicating or even
rupturing this Nation’s foreign relationships. When it
comes to responsibility in this area, the Constitution could
not be clearer. It invests Congress with the power to “define
and punish . . . Offences against the Law of Nations” and to
“regulate Commerce with foreign Nations.” Art. I, §8. To
the President belongs the responsibility of resolving diplo-
matic disputes and commanding the Armed Forces. Art. II,
§§2–3. The Judiciary is assigned no comparable role. See
Jesner, 584 U. S., at ___ (opinion of GORSUCH, J.). Respect-
ing all this, the Court has never purported to create a new
cause of action under the guise of the ATS. Now would be
an exceedingly strange time to start.
Admitting this much would make cases like the one be-
fore us easy. The plaintiffs seek a new cause of action.
There may be compelling reasons for adopting one, or per-
haps some diplomatic concern militating against it. But no
one suggests that the plaintiffs’ cause of action was among
those the ATS was originally understood to allow. Nor does
anyone suggest that Congress has authorized it. To know
that should be enough to know that any debate over the
plaintiffs’ proposed cause of action belongs before lawmak-
ers, not judges.
Making this clear would have other virtues too. It would
get this Court out of the business of having to parse out ever
more convoluted reasons why it declines to exercise its as-
sumed discretion to create new ATS causes of action. It
would absolve future parties from years of expensive and
Cite as: 593 U. S. ____ (2021) 7
GORSUCH, J., concurring
protracted litigation destined to yield nothing. It would af-
ford everyone interested in these matters clear guidance
about whom they should lobby for new laws. It would avoid
the false modesty of adhering to a precedent that seized
power we do not possess in favor of the truer modesty of
ceding an ill-gotten gain. And it would clarify where ac-
countability lies when a new cause of action is either cre-
ated or refused: With the people’s elected representatives.
Cite as: 593 U. S. ____ (2021) 1
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–416 and 19–453
_________________
NESTLE USA, INC., PETITIONER
19–416 v.
JOHN DOE I, ET AL.
CARGILL, INC., PETITIONER
19–453 v.
JOHN DOE I, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2021]
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and
JUSTICE KAGAN join, concurring in part and concurring in
the judgment.
I join Parts I and II of the Court’s opinion. Because re-
spondents have failed to allege a domestic application of the
Alien Tort Statute (ATS), their complaint must be dis-
missed. I do not, however, join JUSTICE THOMAS’ alterna-
tive path to that disposition, which would overrule Sosa v.
Alvarez-Machain, 542 U. S. 692 (2004), in all but name.
The First Congress enacted the ATS to ensure that federal
courts are available to foreign citizens who suffer interna-
tional law violations for which other nations may expect the
United States to provide a forum for redress. JUSTICE
THOMAS would limit the ATS’ reach to only the three inter-
national law torts that were recognized in 1789. That read-
ing contravenes both this Court’s express holding in Sosa
and the text and history of the ATS.
2 NESTLE USA, INC. v. DOE
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
I
A
Included in the Judiciary Act of 1789, the ATS gave fed-
eral courts “cognizance . . . of all causes where an alien sues
for a tort only in violation of the law of nations or a treaty
of the United States.” Act of Sept. 24, 1789, §9, 1 Stat. 77.
The ATS does not list the torts that fall within its purview.
Rather, the statute was “ ‘enacted on the understanding
that [federal] common law would provide a cause of action
for [a] modest number of international law violations.’ ” Ki-
obel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013)
(quoting Sosa, 542 U. S., at 724; some alterations in origi-
nal). Three such torts were “probably on minds of the men
who drafted the ATS”: “violation of safe conducts, infringe-
ment of the rights of ambassadors, and piracy.” Id., at 715
(citing 4 W. Blackstone, Commentaries on the Laws of Eng-
land 68 (1769)).
Unsurprisingly, the domestic and international legal
landscape has changed in the two centuries since Congress
enacted the ATS. On the one hand, this Court in Erie R.
Co. v. Tompkins, 304 U. S. 64 (1938), “denied the existence
of any federal ‘general’ common law.” Sosa, 542 U. S., at
726 (quoting 304 U. S., at 78). Erie thus foiled the First
Congress’ expectation “that the common law would,” of its
own accord, “provide a cause of action for the modest num-
ber of international law violations,” 542 U. S., at 724, that
qualify as “tort[s] . . . in violation of the law of nations,” 28
U. S. C. §1350. On the other hand, the class of law-of-
nations torts has grown “with the evolving recognition . . .
that certain acts constituting crimes against humanity are
in violation of basic precepts of international law.” Jesner
v. Arab Bank, PLC, 584 U. S. ___, ___ (2018) (slip op., at 9).
Like the pirates of the 18th century, today’s torturers, slave
traders, and perpetrators of genocide are “ ‘hostis humani
generis, an enemy of all mankind.’ ” Sosa, 542 U. S., at 732.
The Court reconciled these two legal developments in
Cite as: 593 U. S. ____ (2021) 3
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
Sosa v. Alvarez-Machain. There, the Court explained that
it would “be unreasonable to assume that the First Con-
gress would have expected federal courts to lose all capacity
to recognize enforceable international norms simply be-
cause the common law might lose some metaphysical ca-
chet” in a post-Erie world. 542 U. S., at 730. Indeed, while
Erie rejected the notion of a general federal common law,
the “post-Erie understanding has identified limited en-
claves in which federal courts may derive some substantive
law in a common law way.” 542 U. S., at 729. For over 200
years (both before and after Erie), courts have adhered to
the principle that “the domestic law of the United States
recognizes the law of nations.” 1 542 U. S., at 729.
While Sosa refused to “close the door” to “judicial recog-
nition of actionable international norms,” it remains “sub-
ject to vigilant doorkeeping.” Ibid. Sosa explained that
“courts should require any claim based on the present-day
law of nations to rest on a norm of international character
accepted by the civilized world and defined with a specific-
ity comparable to the features of the 18th-century para-
digms” contemplated by the First Congress (i.e., norms re-
garding safe conducts, the rights of ambassadors, and
piracy). Id., at 725. The Court elaborated that “the deter-
mination whether a norm is sufficiently definite to support
a cause of action should (and, indeed, inevitably must) in-
volve an element of judgment about the practical conse-
quences of making that cause available to litigants in the
federal courts.” Id., at 732–733 (footnote omitted).
In the years since, this Court has read Sosa to announce
a two-step test for recognizing the availability of a cause of
action under the ATS. Courts first ask “whether a plaintiff
——————
1 Other “enclaves” in which federal courts develop legal principles in a
common-law fashion include, for example, the areas of admiralty law,
disputes between States, and some aspects of federal labor law. See Col-
lins v. Virginia, 584 U. S. ___, ___ (2018) (THOMAS, J., concurring) (slip
op., at 7).
4 NESTLE USA, INC. v. DOE
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
can demonstrate that the alleged violation is ‘of a norm that
is specific, universal, and obligatory.’ ” Jesner, 584 U. S., at
___–___ (plurality opinion) (slip op., at 11–12) (quoting
Sosa, 542 U. S., at 732). If so, then “it must be determined
further whether allowing [a] case to proceed under the ATS
is a proper exercise of judicial discretion.” Jesner, 584 U. S.,
at ___ (slip op., at 12).
B
JUSTICE THOMAS reads Sosa and this Court’s subsequent
precedents to impose an “extraordinarily strict” standard at
Sosa’s second step. Ante, at 8. If a court “can identify even
one ‘sound reaso[n]’ ” to think Congress might doubt the
need for a cause of action under the ATS, we are told, the
court should refuse to recognize it. Ibid. (quoting Jesner,
584 U. S., at ___ (majority opinion) (slip op., at 18); some
internal quotation marks omitted).
The trouble with JUSTICE THOMAS’ test is that it is un-
moored from both history and precedent. The ATS was a
statute born of necessity. In the early days of the Republic,
the “Continental Congress was hamstrung by its inability”
under the Articles of Confederation “to ‘cause infractions of
treaties, or of the law of nations to be punished.’ ” Sosa, 542
U. S., at 716 (quoting J. Madison, Journal of the Constitu-
tional Convention 60 (E. Scott ed. 1893)). The United
States’ failure to redress such offenses “caused substantial
foreign-relations problems,” Jesner, 584 U. S., at ___ (slip
op., at 7), and “threaten[ed] serious consequences in inter-
national affairs,” Sosa, 542 U. S., at 715. On more than one
occasion (and in no uncertain terms), foreign powers ex-
pressed their displeasure with the United States’ failure to
provide redress for law-of-nations violations against their
citizens. 2 See Jesner, 584 U. S., at ___ (slip op., at 7); see
——————
2 Two “notorious episodes,” in particular, underscored Congress’ impo-
tence. Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 120 (2013).
Cite as: 593 U. S. ____ (2021) 5
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
also Kiobel, 569 U. S., at 120; Sosa, 542 U. S., at 716–717,
and n. 11. Congress’ “principal objective” in establishing
federal jurisdiction over such torts, therefore, “was to avoid
foreign entanglements by ensuring the availability of a fed-
eral forum where the failure to provide one might cause an-
other nation to hold the United States responsible for an
injury to a foreign citizen.” Jesner, 584 U. S., at ___–___
(slip op., at 8–9).
As this Court explained in Sosa, “[t]he anxieties of the
preconstitutional period cannot be ignored easily enough to
think that the [ATS] was not meant to have a practical ef-
fect.’ ” 542 U. S., at 719. It was Congress’ assessment that
diplomatic strife is best avoided by providing a federal fo-
rum to redress those law-of-nations torts that, if not reme-
died, could bring international opprobrium upon the United
States. Because the First Congress did not pass “the ATS
only to leave it lying fallow indefinitely,” the statute “is best
read as having been enacted on the understanding that the
common law would provide a cause of action” for widely rec-
ognized torts in violation of the law of nations. Id., at 719,
724; see also Jesner, 584 U. S., at ___ (slip op., at 8) (“[T]he
[ATS] was not enacted to sit on a shelf awaiting further
——————
The first occurred in 1784 when a French adventurer assaulted the Sec-
retary of the French Legation in Philadelphia, prompting the French
Minister to complain to Congress “that a violation of the laws of Nations
. . . hath been committed.” 27 Journals of the Continental Congress 478
(G. Hunt ed. 1928). Three years later, a New York City constable created
another diplomatic imbroglio by entering the home of the Dutch Ambas-
sador and arresting one of his servants. The Ambassador wrote to the
Secretary of Foreign Affairs, calling the incident “a most notorious and
direct violation of the rights of nations” and demanding the Secretary’s
“official [interposition] . . . to obtain the satisfaction due . . . by virtue of
the laws of nations.” Letter from P. Van Berckel to J. Jay (Dec. 18, 1787),
in 3 Dept. of State, The Diplomatic Correspondence of the United States
of America 443 (1837) (hereinafter Diplomatic Correspondence) (brack-
ets in original).
6 NESTLE USA, INC. v. DOE
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
legislation”). In other words, from the moment the ATS be-
came law, Congress expected federal courts to identify ac-
tionable torts under international law and to provide in-
jured plaintiffs with a forum to seek redress.
That historical fact must guide jurists when determining
“whether allowing [a] case to proceed under the ATS is a
proper exercise of judicial discretion.” Id., at ___ (plurality
opinion) (slip op., at 12). JUSTICE THOMAS suggests that
courts may recognize a cause of action under the ATS only
“in very limited circumstances,” if at all. Ante, at 5. But
the ATS calls for much more. The First Congress made the
legislative determination that a remedy should be available
under the ATS to foreign citizens who suffer “tort[s] . . . in
violation of the law of nations.” 28 U. S. C. §1350. Barring
some extraordinary collateral consequence that could not
have been foreseen by Congress, federal courts should not,
under the guise of judicial discretion, second-guess that leg-
islative decision.
JUSTICE THOMAS therefore errs in asserting that courts
“plac[e] great stress on the separation of powers” when they
recognize causes of action under the ATS. Ante, at 7. That
would be news to the First Congress, which from the begin-
ning counted on federal courts to “recognize enforceable in-
ternational norms” in order to give the ATS “practical ef-
fect.” Sosa, 542 U. S., at 719, 730. To now suggest that
identifying actionable torts “risks ‘upset[ting] the careful
balance of interests struck by the lawmakers’ ” is ahistorical
at best. Ante, at 8 (quoting Hernández v. Mesa, 589 U. S.
___, ___ (2020) (slip op., at 5); brackets in original).
Indeed, one need look no further than the text of the ATS
to understand the task that the First Congress assigned to
the Federal Judiciary. As originally enacted, the ATS gave
federal courts “cognizance . . . of all causes where an alien
sues for a tort only in violation of the law of nations or a
treaty of the United States.” §9, 1 Stat. 77. Congress did
not need to legislate those “causes” into existence because
Cite as: 593 U. S. ____ (2021) 7
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
international law supplied the substantive contours of ac-
tionable torts, and domestic law indisputably incorporated
international law. See Sosa, 542 U. S., at 729. Neither of
those premises changed after Erie. JUSTICE THOMAS thus
misconceives the judicial task in asking whether courts
may “create” causes of action under the ATS. Ante, at 6; see
also post, at 4–5 (GORSUCH, J., concurring). The assign-
ment is much more modest: Courts must, based on their in-
terpretation of international law, identify those norms that
are so specific, universal, and obligatory that they give rise
to a “tort” for which Congress expects federal courts to en-
tertain “causes”—or, in modern parlance, “civil action[s],”
28 U. S. C. §1350—for redress.
Implicitly acknowledging his departure from Sosa,
JUSTICE THOMAS argues that “precedents since Sosa have
substantially narrowed the circumstances in which ‘judicial
discretion’ ” to recognize ATS causes of action “is permit-
ted.” Ante, at 11. But the case on which he principally re-
lies, Hernández v. Mesa, 589 U. S. ___, is wholly inapposite.
Hernández cautions that “finding that a damages remedy is
implied by a provision that makes no reference to that rem-
edy may upset the careful balance of interests struck by the
lawmakers.” Id., at ___ (slip op., at 5). The ATS, however,
is not a statute that “makes no reference to [a] remedy.”
Ibid. Just the opposite: The ATS expressly contemplates
that federal courts will hear “civil action[s]” for “tort[s] . . .
committed in violation of the law of nations.” 28 U. S. C.
§1350. As such, “a federal court’s authority to recognize a
damages remedy” under the ATS very much “rest[s] at bot-
tom on a statute enacted by Congress.” 3 Hernández, 589
——————
3 For similar reasons, JUSTICE THOMAS’ reliance on Ziglar v. Abbasi,
582 U. S. ___ (2017), is misplaced. There, this Court explained that,
“when deciding whether to recognize an implied cause of action, the ‘de-
terminative’ question is one of statutory intent.” Id., at ___ (slip op., at
9) (quoting Alexander v. Sandoval, 532 U. S. 275, 286 (2001)). The ATS
8 NESTLE USA, INC. v. DOE
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
U. S., at ___ (slip op., at 6). Respect for the separation of
powers is hardly served by refusing a legislatively assigned
task.
II
Applying the wrong standard at Sosa’s second step,
JUSTICE THOMAS reaches the wrong answer. He announces
that, except for “the three historical torts likely on the mind
of the First Congress,” “there always is a sound reason” for
courts to refuse to recognize actionable torts under the
ATS. 4 Ante, at 11. He offers three reasons for this dramatic
curtailment of the ATS. None is persuasive.
First, JUSTICE THOMAS argues that “creating a cause of
action to enforce international law beyond three historical
torts invariably gives rise to foreign-policy concerns.” Ante,
at 9. He offers no meaningful support for that sweeping
assertion, nor does he explain why an ATS suit for the tort
of piracy, for example, would categorically present fewer
foreign-policy concerns than a suit for aiding and abetting
child slavery. That said, JUSTICE THOMAS is correct insofar
as he observes that, in some subset of cases, the diplomatic
costs of allowing an ATS suit to proceed may outweigh the
benefits of providing redress to an injured foreign citizen.
“[W]hen international friction” does arise, however, “a court
——————
leaves no room to doubt that Congress intended foreign citizens to be
able to bring “civil action[s]” for “tort[s] . . . committed in violation of the
law of nations.” 28 U. S. C. §1350.
4 Notably, JUSTICE THOMAS’ alternative disposition would not answer
the question this Court granted certiorari to address, i.e., whether do-
mestic corporations are immune from suit under the ATS (regardless of
the kind of torts for which they are sued). See Pet. for Cert. in No. 19–
416, at i; Pet. for Cert. in No. 19–453, at i. For reasons similar to those
articulated in my dissent in Jesner v. Arab Bank, PLC, 584 U. S. ___, ___
(2018), I would answer this question in the negative. (So would four
other Justices.) As JUSTICE GORSUCH ably explains, there is no reason to
insulate domestic corporations from liability for law-of-nations violations
simply because they are legal rather than natural persons. See post, at
1–4 (concurring opinion).
Cite as: 593 U. S. ____ (2021) 9
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
should respond with the doctrine that speaks directly to the
friction’s source.” Jesner, 584 U. S., at ___ (SOTOMAYOR, J.,
dissenting) (slip op., at 22). Such tools include the presump-
tion against extraterritoriality, limits on personal jurisdic-
tion, case-by-case deference to the political branches, and
the doctrines of exhaustion, forum non conveniens, and in-
ternational comity. See ibid.; Kiobel, 569 U. S., at 133(BREYER, J., concurring in judgment); Sosa, 542 U. S., at
733, n. 21. Ignoring all these options, JUSTICE THOMAS
would instead bar any ATS suit that seeks to hold a defend-
ant liable for violating any international norm that devel-
oped after the 18th century. That is a gross overreaction to
a manageable (and largely hypothetical) problem.
Moreover, in arguing that ATS litigation “ ‘inherent[ly]’
raises ‘foreign-policy concerns,’ ” ante, at 9 (quoting Jesner,
584 U. S., at ___ (majority opinion) (slip op., at 19)), JUSTICE
THOMAS ignores the other side of the equation: that foreign
nations may take (and, indeed, historically have taken) um-
brage at the United States’ refusal to provide redress to
their citizens for international law torts committed by U. S.
nationals within the United States. See supra, at 4, and
n. 2. Closing the courthouse doors thus “gives rise to foreign-
policy concerns” just as “invariably,” ante, at 9, as leaving
them open.
Second, JUSTICE THOMAS suggests that federal courts
lack “the ‘institutional capacity’ to consider all factors rele-
vant” to recognizing actionable torts under the ATS. Ante,
at 10; see also post, at 5–6 (opinion of GORSUCH, J.). It
would be surprising (and, I suspect, distressing) to the Con-
gress that enacted the ATS to learn that federal courts lack
institutional capacity to do the very thing the ATS pre-
sumes they will do. JUSTICE THOMAS’ pessimism aside,
there is no reason to doubt federal courts’ ability to identify
those norms of international law that are sufficiently “ ‘spe-
cific, universal, and obligatory’ ” to give rise to a cause of
action under the ATS. Jesner, 584 U. S., at ___ (plurality
10 NESTLE USA, INC. v. DOE
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
opinion) (slip op., at 12) (quoting Sosa, 542 U. S., at 732).
After all, “[f]or two centuries” this Court has “affirmed that
the domestic law of the United States recognizes the law of
nations.” Id., at 729. There is nothing so mysterious about
a law’s international origins that would prevent courts—
bodies specifically tasked with, and particularly capable of,
interpreting and applying laws—from ably adjudicating a
suit for damages arising out of a “tort . . . committed in vio-
lation of the law of nations.” 5 28 U. S. C. §1350.
Finally, pointing to the Trafficking Victims Protection
Reauthorization Act (TVPRA), JUSTICE THOMAS argues
that Congress’ decision to impose criminal and civil liability
on human traffickers indicates that “Congress might doubt”
the wisdom of recognizing a cause of action for torts other
than the violation of safe conducts, infringement of the
rights of ambassadors, and piracy. Ante, at 9. It is hard to
understand why that would be true. That Congress has
chosen to legislate against certain abhorrent conduct does
not make that conduct any less tortious under international
law. Nor does it increase the likelihood that negative “prac-
tical consequences” will arise from allowing foreign citizens
——————
5 While international law supplies the substantive prohibitions that
give rise to actionable torts under the ATS (e.g., the prohibition against
child slavery), domestic law provides the answer to any subsidiary ques-
tions regarding “how a particular actor is held liable for a given law-of-
nations violation.” Jesner, 584 U. S., at ___ (SOTOMAYOR, J., dissenting)
(slip op., at 2). To the extent JUSTICE THOMAS is worried that federal
courts are incapable of identifying such rules of liability in the absence
of statutory direction, his concern is belied by the Federal Judiciary’s ex-
tensive record of doing just that. See, e.g., Boyle v. United Technologies
Corp., 487 U. S. 500, 512–513 (1988) (recognizing a “Government con-
tractor defense” to state-law product-liability suits); Consolidated Rail
Corporation v. Gottshall, 512 U. S. 532, 541–557 (1994) (recognizing and
defining the scope of liability for negligent infliction of emotional distress
under the Federal Employers’ Liability Act); Agency Holding Corp. v.
Malley-Duff & Associates, Inc., 483 U. S. 143, 156 (1987) (borrowing the
Clayton Act’s statute of limitations for purposes of civil actions brought
under the Racketeer Influenced and Corrupt Organizations Act).
Cite as: 593 U. S. ____ (2021) 11
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
to hold defendants liable for their torts under the ATS.
Sosa, 542 U. S., at 732. On the contrary, the fact that Con-
gress authorized victims of slavery to sue perpetrators un-
der the TVPRA provides strong evidence that Congress
would not, in fact, doubt the efficacy of permitting victims
of slavery to sue perpetrators under the ATS (insofar as the
plaintiffs seek a domestic application of the statute).
JUSTICE THOMAS replies that, because the TVPRA is not
“a retroactive statute,” entertaining respondents’ suit
would “impermissibly second-guess Congress’ decision not
to subject past conduct to a new standard.” Ante, at 10.
Surely JUSTICE THOMAS does not mean that the prohibition
against child slavery is a “new standard.” Nor is it tenable
to argue that, at the time respondents were enslaved on Ivo-
rian cocoa farms, international law permitted the aiding
and abetting of forced labor. 6 Perhaps JUSTICE THOMAS
means to argue that, by adding a cause of action to the
TVPRA in 2008, Congress implicitly foreclosed the availa-
bility of similar causes of action under the ATS. But the
legislative history says otherwise: The Conference Report
that accompanied the original TVPRA took pains to empha-
size “that nothing in [the TVPRA] will preclude trafficking
victims from availing themselves of applicable State, local
or other Federal laws in seeking compensatory or other
damages and relief in any civil proceeding.” 7 H. R. Conf.
——————
6 See, e.g., Khulumani v. Barclay Nat. Bank Ltd., 504 F. 3d 254,
268–277 (CA2 2007) (Katzmann, J., concurring) (surveying aiding-and-
abetting liability under international law).
7 JUSTICE GORSUCH also points out that “[t]he one time Congress
deemed a new ATS action worth having, it created that action itself in
the Torture Victim Protection Act of 1991 [(TVPA)].” Post, at 5 (concur-
ring opinion). But JUSTICE GORSUCH fails to mention what the Commit-
tee Reports accompanying that statute actually said: that while the
TVPA “establish[ed] an unambiguous and modern basis for a cause of
action” to sue perpetrators of torture and extrajudicial killing, the ATS
“has other important uses and should not be replaced.” H. R. Rep. No.
12 NESTLE USA, INC. v. DOE
SOpinion , J.,
of S
OTOMAYOR concurring
OTOMAYOR , J.
Rep. No. 106–939, p. 93 (2000). At bottom, then, there is
simply no basis to infer from “congressional activity,” ante,
at 8, that Congress has by implication grafted a truncated
list of actionable torts onto the ATS that appears nowhere
in the statutory text.
* * *
The First Congress chose to provide noncitizens a federal
forum to seek redress for law-of-nations violations, and it
counted on federal courts to facilitate such suits by recog-
nizing causes of action for violations of specific, universal,
and obligatory norms of international law. I would not ab-
dicate the Court’s obligation to follow that legislative di-
rective. Because I find no support for JUSTICE THOMAS’ po-
sition in the ATS or in this Court’s precedents, I do not join
that portion of JUSTICE THOMAS’ opinion.
——————
102–367, pt. 1, p. 3 (1991); accord, S. Rep. No. 102–249, p. 4 (1991). The
Reports cautioned that “claims based on torture or summary executions
do not exhaust the list of actions that may appropriately be covered” by
the ATS, which “should remain intact to permit suits based on other
norms that already exist or may ripen in the future into rules of custom-
ary international law.” H. R. Rep. No. 102–367, at 4; accord, S. Rep. No.
102–249, at 5.
Cite as: 593 U. S. ____ (2021) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–416 and 19–453
_________________
NESTLE USA, INC., PETITIONER
19–416 v.
JOHN DOE I, ET AL.
CARGILL, INC., PETITIONER
19–453 v.
JOHN DOE I, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 17, 2021]
JUSTICE ALITO, dissenting.
The primary question presented in the two certiorari pe-
titions filed in these cases is whether domestic corporations
are immune from liability under the Alien Tort Statute
(ATS), 28 U. S. C. §1350. I would decide that question, and
for the reasons explained in Part I of JUSTICE GORSUCH’s
opinion, which I join, I would hold that if a particular claim
may be brought under the ATS against a natural person
who is a United States citizen, a similar claim may be
brought against a domestic corporation. See also ante, at 8,
n. 4 (SOTOMAYOR, J., joined by BREYER and KAGAN, JJ.,
concurring in part and concurring in judgment). Corporate
status does not justify special immunity.
The Court instead disposes of these cases by holding that
respondents’ complaint seeks extraterritorial application of
the ATS, but in my view, we should not decide that question
at this juncture. It is tied to the question whether the plain-
tiffs should be allowed to amend their complaint, and in or-
der to reach the question of extraterritoriality, the Court
2 NESTLE USA, INC. v. DOE
ALITO, J., dissenting
must assume the answers to a host of important questions.
Specifically, the Court must assume: (1) that, contrary to
the arguments set out in Part III of JUSTICE THOMAS’s opin-
ion and Part II of JUSTICE GORSUCH’s opinion, it is proper
for us to recognize new claims that may be asserted under
the ATS; (2) that the conduct petitioners are alleged to have
aided and abetted provides the basis for such a claim; (3)
that there is a “specific, universal, and obligatory” interna-
tional law norm, Sosa v. Alvarez-Machain, 542 U. S. 692,
732 (2004) (internal quotation marks omitted), that im-
poses liability for what our legal system terms aiding and
abetting; (4) that, if there is such a norm, we should choose
to recognize an ATS aiding-and-abetting claim, see id., at
725–728, 732, 733, n. 21; and (5) that respondents’ com-
plaint adequately alleges all the elements of such a claim,
including the requisite mens rea. Compare Doe I v. Nestle
USA, Inc., 788 F. 3d 946, 948–951 (CA9 2015) (Bea, J., dis-
senting from denial of reh’g en banc) (aider and abettor
must act purposefully); Aziz v. Alcolac, Inc., 658 F. 3d 388,
398–401 (CA4 2011) (same); Presbyterian Church of Sudan
v. Talisman Energy, Inc., 582 F. 3d 244, 257–259 (CA2
2009) (same), with Doe VIII v. Exxon Mobil Corp., 654 F. 3d
11, 32–39 (CADC 2011) (aider and abettor need only act
knowingly), vacated, 527 Fed. Appx. 7 (CADC 2013); Re-
statement (Third) of Torts: Liability for Economic Harm §28
(2018) (same); Restatement (Second) of Torts §876 (1977)
(same). A decision begins to take on the flavor of an advi-
sory opinion when it is necessary to make so many im-
portant assumptions in order to reach the question that is
actually resolved.
To be sure, Part III of JUSTICE THOMAS’s opinion and
Part II of JUSTICE GORSUCH’s opinion make strong argu-
ments that federal courts should never recognize new
claims under the ATS. But this issue was not raised by pe-
titioners’ counsel, and I would not reach it here.
For these reasons, I would reject petitioners’ argument on
Cite as: 593 U. S. ____ (2021) 3
ALITO, J., dissenting
the question of corporate immunity, vacate the judgment
below, and remand these cases for further proceedings in
the District Court.