We will hear argument this morning in Case 24-856, Cisco Systems versus Doe. Mr. Shanmugam. ORAL ARGUMENT OF KANNON K. SHANMUGAM ON BEHALF OF THE PETITIONERS
“This is a purely procedural opening statement announcing the case and inviting counsel to begin argument. It contains no emotional valence, questioning, or evaluative content whatsoever.”
Thank you, Mr. Chief Justice, and may it please the Court: Aiding-and-abetting liability constitutes a significant expansion of a civil cause of action. For that reason, this Court has made clear that it is generally not available absent clear congressional direction. The ATS contains no express cause of action at all, and the TVPA's cause of action contains no language that provides for aiding and abetting. And recognizing such a cause of action would raise substantial foreign policy concerns, as in this case, which involves serious allegations of wrongdoing in a foreign country by a foreign government. It is for Congress, not for this Court, to provide for aiding-and-abetting liability under these 1 statutes, and it has not done so. As to the ATS, Respondents primarily rely on Sosa, which left open the possibility that courts could recognize new causes of action drawn from modern international law under the ATS. In light of this Court's most recent cases concerning implied causes of action, the Court should take this opportunity to clarify that implying new causes of action under the ATS is impermissible. But even under Sosa, it would not be a proper exercise of judicial discretion to recognize a categorical cause of action for aiding and abetting. Under Central Bank, Congress's silence is sufficient to foreclose that cause of action. And such a cause of action would pose grave harms to foreign policy and the separation of powers, as the government's brief confirms. The Court has never created a new cause of action under the ATS, and this should not be the first. As to the TVPA, the analysis is straightforward. The statute contains no language mentioning aiding, abetting, 1 assisting, facilitating, or otherwise participating in another's conduct. To be sure, the statute imposes liability on a person who subjects the victim to torture, but that verb recognizes one specific type of secondary liability, command liability for an officer responsible for the individual who inflicts the torture. As a matter of plain text but especially under Central Bank, the TVPA does not provide for aiding-and-abetting liability either. Accordingly, the judgment of the court of appeals should be reversed. I welcome the Court's questions.
Can you think of any cause of action that Sosa would permit?
“This question challenges counsel to identify any viable cause of action under Sosa v. Alvarez-Machain, probing the limits of the petitioner's legal theory. It carries skeptical undertones by implying such causes may be difficult to identify, while also representing genuine intellectual engagement with the scope of the legal framework.”
We believe that Sosa permits two types of causes of action, first, a cause of action for the three core offenses contemplated by the First Congress. I think that that is common ground, and that was common ground even in Sosa itself. Second, and importantly, any cause of action subsequently recognized by Congress, and we know from the TVPA that Congress can 1 recognize causes of action for additional norms if it chooses to do so. Congress did so for two additional norms, torture and extrajudicial killing, in the TVPA. In our view, that understanding of Sosa respects the intent of the Congress that enacted the Alien Tort Statute. After all, in Sosa itself, the Court recognized that the ATS in terms is only a jurisdictional statute, but to avoid it being a dead letter, the Court recognized these two additional categories.
Mr. Shanmugam, can I just invite you to think about whether or not aiding-and-abetting liability is actually a significant expansion, as you said in your opening statement? What -- what is your view as to whether or not aiding-and-abetting liability is available for the Blackstone Three that I think you agree are in the ATS?
“The Justice is inviting counsel to reconsider a characterization made in opening (suggesting skepticism about the 'significant expansion' framing), while also genuinely probing the logical implications of the argument regarding aiding-and-abetting liability under the Blackstone Three framework. The polite 'invite you to think about' softens what is essentially a challenge to counsel's premise.”
Yeah. So our view is that there is insufficient historical evidence even as to those three. And I won't belabor it unless you would like me to. We go through in the reply brief the sources relied upon by my 1 friend on the other side. But I think, beyond that, we think that the right way to think about those three core offenses is that you would still need to conduct the analysis at step 2 of Sosa, and I think that under that analysis, many, if not all, of the arguments that we're making as to why it would be an improper exercise of judicial discretion would apply in that context as well.
But wouldn't you be doing it in that case on a case-by-case basis? I mean, I -- I'm wondering about your argument insofar as it does seem to be grounded in the view that aiding-and-abetting liability is like a separate cause of action as opposed to just an expansion of the types of defendants who can be held liable for this underlying conduct. And so, I mean, I'm sure that your friends on the other side will point to evidence that even Blackstone thought that aiding and abetting piracy or aiding and abetting the other Blackstone-established core violations was allowed under international law, and I don't understand why they would be 1 precluded as an expansion somehow of those core violations.
“The Justice is actively probing the petitioner's argument by questioning the characterization of aiding-and-abetting as a 'separate cause of action' and pointing to historical counterexamples (Blackstone), signaling doubt about the argument's logical foundation. The intellectually engaged, exploratory tone mixed with pointed rhetorical questioning reflects both skepticism and substantive engagement.”
Two points in response to that, Justice Jackson. First, I think it's a -- a fair point that you could conceptualize this not as a separate cause of action but as a question concerning the scope of the cause of action. I don't think anything really depends on that. I think that we think that the analysis should be the same either way. And, indeed, I think Justice Sotomayor's dissent in Jesner supports our view because, to the extent that she construed Footnote 20 of Sosa to suggest that you still take domestic law into account when analyzing these questions about the available defendants, we would obviously point to Central Bank. But, second -- and I think that this is directly responsive to the question of what to do about the three core offenses -- I think that the Court could, if it so chose, simply draw a line around those three core offenses and say that whatever the historical evidence on those three core offenses, that evidence 1 does not support recognition of aiding-and-abetting liability across the board. And Respondents are really advocating for a categorical --
But why would we do that? I guess what I -- my -- my point is why? Why draw the line between the core offenses and aiding and abetting as opposed to the core offenses and other types of -- of offenses? I don't understand the line that you would have us draw.
“The Justice is directly challenging the logical basis for the line petitioner's counsel is drawing, using repeated 'why' questions and stating 'I don't understand the line' — classic skeptical probing of the argument's coherence. There is a mild clarifying element as the Justice seeks to understand the reasoning, but the tone is clearly one of doubting the proposed distinction.”
I -- I think because the approach that you're hinting toward would run directly into Central Bank, and let me explain why. We think the right way to think about the first step -- and, of course, we're not really disputing the first step here, but let me engage on that directly. We think that if you're analyzing this under the first step, you would have to engage in a norm-by-norm analysis; namely, you would have to look to whether or not, for any particular norm, aiding-and-abetting liability is available. But I don't think you can extrapolate 1 from the smattering of historical evidence concerning the three core offenses that aiding-and-abetting liability was generally available in civil cases at the time of the ATS.
Well, maybe not, Mr. Shanmugam, but I guess the question is, why might it not be available sometimes? In other words, there's -- neither categorical rule is right, but instead, it's a norm-by-norm inquiry in much the way that Judge Bumatay suggested in his Ninth Circuit opinion. Why wouldn't that be the right way to look at it? And it could -- you know, as he suggested, even within the three Blackstone offenses, the evidence for aiding-and-abetting liability is quite different, maybe strongest in piracy, and then there is some questions about the other two.
“The Justice is intellectually engaging with the petitioner's argument by proposing a middle-ground approach (norm-by-norm inquiry) and referencing Judge Bumatay's concurrence, suggesting neither categorical rule is correct. There's mild skepticism toward the petitioner's position while also showing genuine intellectual engagement with the complexity of the issue.”
So, as you will be aware, Justice Kagan, if you take a look at the complaint, pages 100 to 101 of the Joint Appendix, there are seven separate primary norms on which Respondents are relying here. Now Respondents, to the extent that 1 they make an argument under step 1, make no effort to disaggregate those norms and engage in the sort of norm-by-norm analysis that you suggest. They've gone all or nothing, and they've done that throughout this litigation. So I don't think that they should be given a second bite at the apple. Their argument is for a categorical norm of aiding-and-abetting liability. And I do think that the best evidence as to why this Court should be precise about this is actually a law that was enacted a year after the ATS, the Crimes Act of 1790, when Congress, when it was defining criminal liability, made aiding and abetting available for piracy but not for the other two of the three core offenses. And so all of which is to say that there should be norm-by-norm rigor in our view in this analysis. But I would say one further thing that I think is very important conceptually.
I'm sorry, that there should be?
“The phrase 'I'm sorry, that there should be?' is a brief request for clarification or repetition, suggesting the Justice did not fully hear or understand the counsel's point. The apologetic opener signals a neutral, clarifying intent rather than skepticism or hostility.”
Because I was planning on asking your friend the same question because it seems to me that both of you fall into this, you know, he urges one categorical rule, you urge another categorical rule. And what I might be suggesting is that neither of those categorical rules is appropriate, that you have to look norm by norm. Of course, this case is quite odd because -- because you're not contesting whether any of these seven things that are listed in the complaint are norms under the ATS and we're being referred only to this broad aiding-and-abetting question when the more natural way of thinking about these questions are, like, take a look at the norm, is the norm covered first? And if the norm is covered, what's the scope of liability, secondary liability, that's attached to that norm?
“The Justice is actively engaging with the structure of the legal argument, suggesting a norm-by-norm framework rather than either party's categorical rule, indicating intellectual exploration. There's mild skepticism toward both parties' categorical approaches, but the dominant tone is engaged analytical probing of how the ATS analysis should be properly structured.”
Two responses to that, Justice Kagan. First, if the Court accepts our first-order submission that the Court should shut the door that it left open in Sosa, then the norm-by-norm analysis obviously falls out 1 of the equation. Those primary norms are not actionable, a fortiori, no secondary liability. But, second, and I think importantly, if you don't agree with that and we are in Sosa world, at the second step of the analysis, I actually don't think that the second step requires a norm-by-norm analysis here because the foreign policy concerns that I discussed at the outset would be equally applicable regardless of the norm that is at issue. In each of these cases, you're talking about a claim that would require a federal court to find a primary violation of international law based on the conduct of a foreign sovereign on its own soil, and that's true regardless of which of the seven norms is at issue. So, if you were looking for a straight-line way to write an opinion in this case, one way to do that would be simply to say at the second step, much as in Jesner, that these sorts of claims, these sorts of aiding-and-abetting claims, as a categorical matter are likely to raise these sorts of foreign policy concerns, as well as the broader 1 separation of powers concerns that underlie this Court's reluctance to recognize implied causes of action.
Mr. Shanmugam -- oh, go ahead.
“This is a purely procedural utterance where the Justice begins to address counsel by name, then defers to another Justice or speaker to continue. There is no substantive content, emotional valence, or argumentative probing—it is entirely administrative in nature.”
I was just going to ask you if your argument is restricted just to aiding and abetting, or would it extend to other forms of secondary liability, like civil conspiracy as well? And if not, why not? If yes, why?
“The Justice is genuinely seeking to understand the scope of counsel's argument, asking whether it applies narrowly to aiding and abetting or more broadly to other forms of secondary liability like civil conspiracy. The phrasing 'I was just going to ask' and the open-ended 'if yes, why; if not, why not' structure reflect intellectual curiosity and a desire for clarification rather than skepticism or challenge.”
It could potentially. And I don't want to prejudge an issue that could be coming to the Court because there is a case recently decided by one of the courts of appeals that involves a question of conspiracy liability. I think many of the same arguments that we're making at step 2 could apply in that context. But, again, I don't want to prejudge that. I think that what we do have is a very robust body of experience now with these sorts 1 of aiding-and-abetting claims. And I do think that it is clear -- and the government sets this out at some length in its brief -- that this category of claims is especially likely to raise these sorts of foreign policy concerns. And this Court, in its most recent ATS cases, has looked to that body of case law, the broader body of case law concerning implied causes of action, and there, under Egbert, the question is whether there is any sound reason to believe that Congress might not want to recognize this type of liability, and the fact that these concerns arise so frequently in these sorts of cases is sufficient to satisfy that standard.
Counsel, I -- I'm so -- I'm a little bit lost when you answered Justice Barrett because you start by saying your first-line order is to say you can't recognize any claim outside of Blackstone's Three. And now -- and -- and you're basically saying any claim, including conspiracy, is always out under step 2, correct? So you're asking us basically to overrule Sosa.
“The Justice expresses confusion and probes an apparent inconsistency in counsel's argument, suggesting skepticism about the logical coherence of the position. The phrase 'I'm a little bit lost' combined with the pointed conclusion 'you're asking us basically to overrule Sosa' signals both genuine clarification-seeking and skeptical pressure on the argument's internal consistency.”
So, with regard to our first-order submission, which is that the Court should shut the door that it left open in Sosa, we --
That would be overruling.
-- we don't think that that was a holding in Sosa. It was not essential --
Assuming I don't -- I don't agree with you because, in Kiobel and Jesner, we called it a ruling, but putting aside that that's what we called it, you are basically saying, if it's a holding, overrule it, correct?
“The Justice is directly challenging counsel's position by flagging disagreement with the premise ('Assuming I don't agree with you') while also seeking to clarify the logical endpoint of counsel's argument — essentially pressing them to confirm they are asking the Court to overrule prior precedent. This combines skepticism with a clarifying/engagement quality as the Justice tests the full implications of the argument.”
If it is a holding, we don't think that stare decisis justifies retaining it. And -- and I'm happy to --
All right. Now let -- let's go to that, okay? There's about 300 of these cases that were passed that have ever been brought. That's not an enormous sum. After Kiobel, that number dropped precipitously, all right? So it's not as if this is such a large 1 number of cases that it's overwhelming the courts below. We don't see a rush in the four circuits that permit aiding-and-abetting liability of new cases. So I'm not sure why this has become unworkable in the stare decisis sense. But we have the Convention Against Torture, of which we're a member and China is a member and Russia and a whole bunch of other countries, and that does require nations to ensure that people who are complicit in violations of international law are held responsible. So we'd be reading out of the ATS and probably the TVVA -- TVPA our obligation under the convention. And, finally, what do we do with the thing you rely on, the -- the Crimes Act, okay? You say the Crimes Act only made piracy aiding and abetting liable, but it also said that violations of any safe conduct, which is not piracy, that had to do with ambassadors, "that any actions that in any other manner impact the law of nations" -- I'm quoting it -- "and those who persecute or solicit any such process that violates an ambassador's immunities," and stated that those people would 1 be deemed violators of the nations of law. That seems to me like an aiding-and-abetting provision. So it goes back to Justice Kagan's point that what aids and abets an international law is specific to each one, but -- and it may not be identical for all, but the law of nations does have forms of aiding and abetting.
“The Justice is actively pushing back against the respondent's position by marshaling counter-evidence (case statistics, international treaty obligations, the Crimes Act text) to support aiding-and-abetting liability, showing both skepticism toward the opposing argument and engaged intellectual exploration of the legal framework. The tone is largely constructive and analytical, building toward a conclusion favorable to the petitioner, with elements of skepticism directed at the argument being challenged.”
Okay. I think that there were three parts to that question. Let me address them in turn. First, with regard to the stare decisis effect of that portion of Sosa, assuming arguendo that it is a holding, I do think with respect, Justice Sotomayor, this has proven to be unworkable in the lower courts. And the profusion of lower court cases that have --
Can I stop you there? What's unworkable about it? Let me -- let me just ask you something. In terms of aiding and abetting this crime, the allegation is that Cisco, knowing that China was going to torture Falun Gong adherents, actually promoted sales of its 1 technology not only by telling them that it could do it if they bought this technology but custom-making it, as it bragged to the Senate, so that it could identify 90 percent of such adherents. It is alleged that by its internal and public statements it knew that those people would be tortured. So what is the problem with how that fits into any conscious aiding-and-abetting statute, including our own domestic one that requires active inducement and active participation?
“The Justice interrupts counsel ('Can I stop you there?') and then lays out the petitioner's case in favorable detail before challenging counsel to explain the weakness in the aiding-and-abetting theory, signaling strong skepticism toward the respondent's (Cisco's) position. The rhetorical framing 'what is the problem with how that fits' strongly challenges counsel's argument that the aiding-and-abetting standard is unworkable.”
May I answer the questions that are on the table? First, with regard to the allegations --
With regard to the allegations in this case, Justice Sotomayor, it will not surprise you to learn that Cisco vigorously disputes those allegations here. But I want to put this in the frame of where you started with your question, which is the experience of the lower courts. You are 1 right that there have been around 300 of these cases. As we point out in our brief, there have only been six cases where plaintiffs have prevailed with a monetary recovery. And in the meantime, we have seen the lower courts struggling with this question of what norms to recognize, what the scope of those norms are. And our submission is that this aspect of Sosa in a post-Erie world, recognizing new causes of action, was wrong at the time, but recent developments have made clear that it is no longer tenable, namely, this Court's view in cases involving implied causes of action that this is quintessentially a legislative endeavor. Second, with regard to the Convention Against Torture, the provision to you -- which you refer is Article 4, which is a provision concerning criminal liability. And, sure enough, when Congress, in the wake of the Convention Against Torture, enacted the federal criminal prohibition on torture, it incorporated 18 U.S.C. 2 and provided for aiding-and-abetting liability. There was no requirement in the corresponding provision of 1 the Convention Against Torture for civil liability, Article 14, for aiding and abetting. And, finally, with regard to the last part of your question, the Crimes Act of 1790, yes, it's true, for violations of safe conduct, Congress did include soliciting. And as we point out in our reply brief, so did Blackstone. That is a form of secondary liability. It's not full-fledged aiding-and-abetting liability. And that just underscores that when Congress acts, it often acts in a reticulated fashion with regard to secondary liability. We could talk about the Genocide Convention Implementation Act, the War Crimes Act. There are many contexts in which Congress imposes broad criminal liability but narrower civil liability. It may very well be that the conduct in some of these cases is unlawful. It's simply not the subject of a civil cause of action under either the ATS or the TVPA.
Thank you, counsel. Justice Thomas, anything further? Justice Alito?
“This is purely procedural language — thanking counsel and polling other justices for additional questions. There is no emotional valence or substantive legal content whatsoever.”
What do we do --
“This very brief, incomplete utterance ('What do we do --') appears to be the start of a question, likely cut off mid-sentence. It carries a mild clarifying or engagement tone as the Justice seems to be posing a practical question, but the extreme brevity and lack of context make a neutral/procedural classification most appropriate.”
What do we do with the congressional statements at the passage of the TVV -- TVPA where it says that they want us to continue under the ATS addressing violations of international law? It was either the House or the Senate report that made that statement explicit.
“The Justice is raising a specific piece of legislative history (congressional statements at TVPA passage) that potentially supports continued ATS jurisdiction, exploring how counsel would address this evidence. The tone is inquisitive and intellectually engaged rather than hostile, seeking to understand how the argument accounts for this congressional record.”
So, first of all, I -- with regard to the TVPA specifically -- and I want to make sure that I address any questions that the Court might have about that question presented -- we obviously don't think that the legislative history supports Respondents' broad view of the meaning of the term "subjects," and that is because the Senate report, after a passing reference to aiding and abetting, talked about precisely the kind of command liability that I referred to at the outset. But, second, I think that Congress was quite careful in enacting the TVPA really not to take a position even in the legislative history about the question that we've been 1 discussing for most of the first 20 minutes of this argument, which is whether or not the ATS validly can be expanded to new primary norms and, a fortiori, to aiding and abetting.
I'm not sure how you get to your position that "subjects to" can't mean aiding and abetting, because command liability doesn't necessarily require subjecting someone to the torture. It makes someone who's in a command position who knows of the torture and permits it to happen but doesn't aid and abet it in the sense that we have defined aiding and abetting. We've defined aiding and abetting as an active step in permitting and encouraging the substantive act. So I'm not sure how you get to limit the word "subject" in the way you're suggesting, because command liability is a very different concept.
“The Justice is directly challenging the petitioner's argument by pointing out that their interpretation of 'subjects to' is too limiting, noting that command liability is distinct from aiding and abetting. The repeated use of 'I'm not sure how you get to' signals strong skepticism toward the petitioner's legal reasoning, though there is some intellectual engagement as the Justice works through the distinctions between command liability and aiding and abetting.”
Justice Sotomayor, it is a very different concept because command liability is a form of vicarious liability. By contrast --
Exactly. And so, to the extent that Congress used the word, 1 "subjects" has an aiding-and-abetting concept tied to it by definition.
“The Justice opens with 'Exactly,' signaling agreement with the counsel's point, and then builds upon that agreement by extending the argument about the word 'subjects' having an inherent aiding-and-abetting concept. This reflects both approval of the counsel's position and active intellectual engagement in developing the legal reasoning.”
I don't think that it does, and, notably, Respondents don't point to a single other federal statute where "subjects to" is used to connote aiding and abetting. By contrast, we have nigh on a hundred statutes in the appendix to our reply brief where Congress does use the term "aids and abets." And, here, I think --
Well, the dictionary says "to cause to undergo or submit to, to expose or to make someone liable or vulnerable to something." I don't know any other word to define "aiding and abetting" but those, that you are participating in an act or causing or exposing someone to it or under -- or -- or helping to submit someone to do it. I -- I -- I don't understand.
“The Justice is citing dictionary definitions and expressing genuine confusion ('I don't understand') about the counsel's interpretation of 'aiding and abetting,' suggesting both skepticism toward the argument and a clarifying intent to understand how counsel can distinguish the standard meaning from their position. The repeated 'I don't understand' signals mild hostility or frustration alongside the probing skeptical challenge.”
Justice Sotomayor, there's actually not a great deal of disagreement about the dictionary definitions of the verb "subjects." I think that the core notion is to cause someone to undergo or experience something or to expose someone to 1 something. And in our view, those definitions require inflicting some action on the victim. So we don't actually accept the view that, say, merely facilitating something to happen --
So that the person -- that the person who's in the room with the torturer and hands him the instruments but doesn't actually inflict the injury is not causing the injury?
“The Justice is using a vivid hypothetical about complicity in torture to challenge the petitioner's argument about causation or direct involvement, strongly implying skepticism toward the position that indirect participation doesn't constitute causing harm. The rhetorical framing ('is not causing the injury?') signals doubt about the counsel's legal reasoning.”
That person could well be primarily liable in that context --
-- depending on their conduct.
Under your theory of what "causing" means?
“The question probes the petitioner's definition of 'causing,' suggesting the Justice is testing or questioning the logical implications of the petitioner's interpretation, which carries both skeptical and clarifying tones. The phrasing 'under your theory' signals mild skepticism by highlighting that the definition is the petitioner's own construction.”
I think that that person could be within the realm of people who participate in the primary act. And I think that if you were, say, indicting that person in a criminal case, I don't think you would necessarily be indicting that person under 18 U.S.C. 2. But, if you disagree with everything 1 that I've said --
But you could do it under one or the other and they would still be liable, correct?
“The Justice appears to be seeking confirmation or clarification about the scope of liability under alternative legal theories, using 'correct?' to verify their understanding. The question has a slightly skeptical undertone as it probes the reach of petitioner's argument, but the primary intent seems to be clarifying whether liability attaches under either theory.”
But, if you disagree everything I've said so far in this colloquy, Justice Sotomayor, I have one more card up my sleeve, which is the definition of "torture," which requires the offender to have "custody or physical control of the victim." Now you might say in response to that, well, how can it be that someone who is up the chain of command would satisfy that since, after all, I'm standing here saying that this just covers command liability? I think that that would cover people who have direct or indirect custody or physical control. But, again --
Exactly, but, I'm sorry, that definition tells you what "torture" means. It doesn't tell you who's liable for it. What tells you who's liable for it is "any person who subjects another to torture."
“The Justice begins with 'Exactly' suggesting partial agreement, but then pivots to challenge the counsel's interpretation by drawing a sharp distinction between what defines torture versus who is liable for it. This rhetorical move probes a weakness in the argument, indicating skepticism about the petitioner's legal reasoning regarding liability.”
But, Justice Sotomayor, as we explain in our reply brief, we 1 think that that reference to "offender" has to mean the people who would otherwise be liable. So, sure, you're right, we're relying on the definition of "torture." We think that definition is confirmatory of our position. And I think that this does, with respect, accord with common sense. Let's take this case. There are two individual defendants who are the subject of the TVPA claim, the former chief executive of Cisco and the vice president who was responsible for Cisco China. Nowhere in the hundred-plus pages of complaint in the Joint Appendix do you find a statement that either of these individuals subjected Mr. Lee to the alleged misconduct. And I would respectfully submit that that is not how you would use ordinary English.
Counsel -- counsel, that might be a failure in the complaint, but that's not the issue before us. Assuming it did, because that's what we have to assume.
“The Justice is redirecting counsel back to the actual issue before the Court, dismissing a tangential argument about the complaint's sufficiency and refocusing on the assumed facts. This is largely a procedural/neutral correction with some clarifying intent to keep the argument on track.”
I do not think, with respect, that Respondent Lee plausibly could allege that here. But I think that that just 1 confirms that when you're talking about someone who is alleged to have facilitated the act, these are people who stand at a much further level of remove than your hypothetical person who hands the -- the weapon to the person who directly inflicts the -- the act of torture or misconduct.
Justice Kagan, anything further? Justice Gorsuch? Justice Kavanaugh?
“This is a purely procedural utterance from the Chief Justice polling colleagues for additional questions. It carries no emotional valence and serves only an administrative function in managing the oral argument.”
Two things. You said six cases in which plaintiffs have prevailed. Does that include settlements or not include settlements?
“The Justice is directly asking for clarification on a factual claim made by counsel — specifically whether 'six cases' includes settlements — which is a straightforward request for precision in the data presented. The phrasing 'two things' signals an organized, methodical inquiry rather than skepticism or hostility.”
I believe that that is monetary recoveries in court.
And do you have any statistics on settlements?
“The Justice is straightforwardly asking for empirical data on settlements, which is a neutral information-seeking question. The phrasing 'do you have any statistics' suggests genuine curiosity about supporting evidence, placing this primarily in the clarifying category with some engagement.”
Okay. And on the TVPA, I understood your argument to just be Central Bank, end of story. Is that a good summary?
“The Justice is summarizing and confirming their understanding of counsel's argument about the TVPA and Central Bank, seeking to verify they've correctly characterized the position. This is primarily a clarifying question with mild engagement, showing no hostility or skepticism.”
I think that that is a good summary. I think, even if we didn't have Central Bank, I think our view is the better view of the language, but I think, in the wake of Central Bank, if this Court hasn't said that it's a magic words requirement, I think that the Court came pretty close to that. And the Court did say that even the phrase "directly or indirectly" is insufficient. I would say "subjects" is not even close to that.
So one difficulty or question, I should say, that I have about your front-line argument about freezing this with the Blackstone Three is that in Sosa, the Court said it had little evidence to think that the First Congress had in mind anything beyond the Blackstone Three. But I'm not sure that's right. I mean, Professors Bellia and Clark have done research to suggest that, in fact, at the time that the ATS was enacted, the law of nations 1 did recognize causes of action for the violence committed by an American citizen against a foreign national. Do you want to address that?
“The Justice is directly challenging the petitioner's 'front-line argument' by citing contrary academic research (Bellia and Clark) to undermine the claim that the ATS was frozen at the Blackstone Three, showing clear skepticism toward the argument. However, the tone remains intellectually curious and inviting rather than hostile, with genuine engagement in the historical and legal debate.”
I suppose that the Court could -- I'm aware of the Law Review article by those two distinguished professors. And I think that the Court, if it so chose, could leave the door slightly open to parties coming forward to make the case that there were other norms that would have been recognized by the First Congress. That is not what is at issue here. And, again, the way that this case has been litigated, Respondents have argued for a categorical right for aiding-and-abetting liability, and I don't think that you can fit that into that particular box in this case.
Well, that, I mean, this kind of goes back to Justice Kagan's point. Those are all the causes of action. You're talking about the scope of liability, which is a slightly different point. I'm just saying that the -- the front-line rule that you want of just freezing 1 those -- freezing the line at those three, that's part of my cause -- that -- that's part of the concern that I have with respect to that one. But -- but let me ask you a question about your argument about aiding-and-abetting liability and the expanse of that. Doesn't it seem a little odd if the ATS is primarily a jurisdictional statute, which I take your first-line position to be, to say that there's a categorical rule about whether aiding and -- aiding-and-abetting liability can attach categorically or not to a jurisdictional statute? Just thinking about it in the categorical way Justice Kagan was pressing you on, it does seem a little bit odd to conceive of it that way.
“The Justice is actively challenging the petitioner's position by pointing out an apparent logical inconsistency—that treating aiding-and-abetting liability categorically seems odd for a jurisdictional statute—while also expressing a personal concern about the 'freezing the line' rule. The tone is probing and skeptical, building on Justice Kagan's earlier line of questioning, but remains intellectually engaged rather than hostile.”
That is the discomfort that I think this Court's decision in Sosa, with respect, created because, after all, we invoke Central Bank with regard to the ATS as well as the TVPA, and you might say, why is Central Bank relevant here? This is just a jurisdictional statute. 1 I would hope that it would follow a fortiori that if the Court doesn't infer aiding-and-abetting liability even when you have an express cause of action, the -- the Court would not infer aiding-and-abetting liability when the cause of action itself is entirely a judicial creation.
Unless there was evidence that at the time the ATS was enacted, there was aiding-and-abetting liability for a particular offense against the law of nations, correct?
“The Justice is probing the petitioner's argument by presenting a specific condition ('unless there was evidence...') that would limit or undercut the claim for aiding-and-abetting liability under the ATS. The 'correct?' tag invites confirmation but implicitly challenges the breadth of petitioner's position, blending clarification with skeptical pressure.”
Yes. But we certainly don't have that here with regard to any of the seven norms at issue. And so, if the Court wanted, again, to just draw a line around the three core offenses and whatever else might be in that original 1789 bucket, that's an easy enough footnote for the Court to write.
So perhaps you might be satisfied with a rule that said there's no categorical availability of aiding and -- aiding-and-abetting liability, but it doesn't exist with respect to the seven offenses with which Cisco was charged?
“The Justice is probing whether the petitioner would accept a narrower ruling that denies categorical aiding-and-abetting liability but limits it to the specific offenses charged, showing intellectual engagement in testing the bounds of the argument while also gently questioning whether petitioner's position is broader than necessary.”
Correct, that's right. And to the extent that Justice Kagan's question might have had the implicit premise that this could be worked out on remand, Respondents have had every opportunity to make that argument, and I would invite the Court to look -- go back and look at the Ninth Circuit briefing, and you will search that in vain for the kind of norm-by-norm analysis that we're discussing.
Can I just pick up on that because I just want to be sure I understand. So you would be okay with a rule that says there's no categorical preclusion of aiding-and-abetting liability?
“The Justice explicitly signals a desire to confirm understanding ('I just want to be sure I understand'), which is a classic clarifying move. There is mild engagement as the Justice builds on a prior point, but the dominant intent is to precisely pin down the petitioner's position on aiding-and-abetting liability rather than challenge or probe it.”
I think that the Court should go further than that. Obviously, with our first-order argument, that would implicitly shut the door to anything other than the norms that I was just discussing with Justice Barrett. I think that the Court should make 1 clear, again, that there is no categorical cause of action for aiding-and-abetting liability.
No, but that's the opposite of what I'm saying. That is what you're asking for. And I understood Justice Kagan to be positing that there might be, there might be in any circumstance in which the norm would be included under Sosa.
“The Justice begins with 'No, but that's the opposite of what I'm saying' — a direct correction signaling frustration and mild hostility — while also clarifying their own position and referencing Justice Kagan's framing, indicating an attempt to redirect and clarify the argument amid disagreement with counsel's characterization.”
No, no. I mean, I think our step 2 argument would apply to any norm beyond potentially the three core offenses because, as I said to Justice Kagan --
No, can I just -- I -- I'm sorry. I'm just trying to understand what aiding-and-abetting liability your position is with respect to that. And I had understood -- and maybe I was mistaken -- that you were asking us to categorically preclude recognition of aiding-and-abetting liability as if it was a separate cause of action that was being brought to the table for inclusion under Sosa. And what I'm positing and what other Justices have pointed to is that 1 aiding-and-abetting liability could instead be construed as secondary to some underlying cause of action. And so, to the extent that an underlying cause of action meets the Sosa test, then you might have aiding-and-abetting liability depending upon the historical circumstances of aiding and abetting with relationship to that norm. But it's not as though, I think, you are looking at aiding-and-abetting liability as if it is a completely separate cause of action that we're just applying Sosa to as though there was no underlying cause of action.
“The Justice is primarily seeking clarification about the petitioner's legal position on aiding-and-abetting liability, explicitly stating 'I'm just trying to understand.' The Justice is also engaging with the intellectual framing of the issue, proposing an alternative construction (secondary vs. separate cause of action), which reflects genuine clarifying intent with some intellectual engagement and mild approval of a particular framing.”
Justice Jackson, I think I understand the question, so let me give you my best effort at an answer.
First, I think that to the extent that we say that a norm-by-norm analysis is required, that would be at step 1 of the Sosa analysis. But I do think that at step 2, regardless of whether you conceive of this as a separate cause of action or a question concerning the scope of the cause of action, the analysis at step 2 is the same with 1 regard to any of these norms. So I don't think it would be --
But why is that? Can I -- can I -- that's the second part of my question.
“The Justice is seeking clarification by asking 'why is that?' and explicitly noting this is a follow-up to a prior question, indicating a genuine attempt to understand the argument's reasoning. The self-interrupting structure ('Can I -- can I --') suggests an engaged but fundamentally clarifying intent rather than skepticism or hostility.”
All right. So let's say we have an underlying piracy claim, which we are, just for the purpose of this question, are saying is included in ATS. I had understood your argument to be that regardless, no -- no aiding and abetting. But, with respect to step 2, to the extent that you're talking about the foreign policy concerns, couldn't there be a circumstance in which the foreign policy concern would not care whether or not there's aiding-and-abetting liability? In other words, what's creating the foreign policy concern is the underlying claim, and to the extent that, say, China says we don't care about the underlying claim being brought here, what additional work from a foreign policy concern standpoint is attaching or having an aiding-and-abetting liability 1 claim?
“The Justice is actively probing the petitioner's argument about foreign policy concerns and aiding-and-abetting liability under ATS, constructing a hypothetical (China not objecting) to challenge whether the foreign policy rationale actually does any additional work beyond the underlying claim. This combines intellectual engagement with skeptical probing of the argument's logical coherence.”
So three quick points in response to that.
And then I'll sit down. First, I think that this is, in terms of the paradigm, very similar to Jesner. You could have made the same argument in Jesner that, well, it's not really a question concerning a cause of action. It's a question concerning the available defendants, namely, whether foreign corporations could be defendants. And the Court nevertheless conducted the step 2 analysis. Second, with regard to how the step 2 analysis works, I want to bracket for the minute the three core offenses. I think, with regard to any of these other offenses, you have the same fundamental problem that raises foreign policy concerns and the broader separation of powers concerns, which is no matter what the norm is, you're talking about a primary violation of international law, in this case, by a foreign sovereign against its own citizens, and that is by far the mine-run of 1 these cases.
But that's in this case. What if we have a -- a primary violation of international law that doesn't involve the underlying country, and for ATS purposes, wouldn't the point of that statute be that the United States is making its courts available for the adjudication of that claim in a way that actually supports foreign policy, right? The country would -- the other country would want its nationals to have a forum.
“The Justice is intellectually exploring a hypothetical scenario that distinguishes the current case from other ATS applications, testing whether the statute's purpose (making U.S. courts available for international law violations) might support foreign policy rather than undermine it. The 'What if' framing and exploratory reasoning suggest genuine intellectual engagement with the legal question, with mild skepticism toward the petitioner's framing.”
My friend, Mr. Hoffman, I suspect, may get up here and say, well, you can posit such a case. And I think our response to that is: No, this Court made clear in Jesner that this is a categorical analysis, and where you have a category of cases where it is likely that you're going to have these concerns, you therefore have a sound reason to believe that Congress might not want to extend liability to that category. That is precisely how this Court decided Jesner, and it would make this Court's ATS cases congruent with its cases concerning applied causes of action more generally. 1 And I said I would have one last point, which is that the government has a footnote in its brief where it makes the point that with regard to these three core offenses, what is different about those offenses is that they involved either conduct that took place in the United States, such as the famous Marbois incident, or conduct that takes place in the high seas. And we would acknowledge that the foreign policy concerns might not be as great in that context even if the separation of powers concerns are equal, and that's a reason why the Court might want to leave open the possibility of aiding-and-abetting liability as to those offenses.
Mr. Gannon. ORAL ARGUMENT OF CURTIS E. GANNON FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS
“This is purely a procedural statement introducing the next counsel to speak during oral argument, with no emotional valence or judicial sentiment expressed.”
Mr. Chief Justice, and 1 may it please the Court: Respondents allege that Petitioners aided and abetted international law violations committed abroad by foreign officials. Such allegations should not be cognizable under either the Alien Tort Statute or the Torture Victim Protection Act until Congress actually says that they are. With regard to the ATS, that follows from two separate modes of analysis. First, under the second step of Sosa, his own test, separation of powers concerns should readily prevent the Court from creating a private right of action for aiding and abetting. Second, the Court might wish to conclude more generally that it should not recognize any new norms under the ATS, notwithstanding Sosa's decision to leave the door ajar to that. With regard to the TVPA, the statutory text and context do not impose aiding-and-abetting liability, especially in light of the background assumption reflected in Central Bank of Denver that in the civil context, Congress should do that expressly. I welcome the Court's questions.
So, if we adopt that approach, what would be left of Sosa?
“The question challenges the petitioner's argument by implying it would effectively nullify the Sosa precedent, signaling skepticism about the approach's compatibility with established law. The phrase 'what would be left' suggests concern about the sweeping implications of adopting the proposed standard.”
The original three would still be there under Sosa --
-- so the statute would not be a dead letter. As my friend pointed out, the TVPA recognized causes of action for -- for torture and extrajudicial killings, but, otherwise, I think you would be going through the Sosa two steps, so I'm not sure which question you're -- you're -- you're -- you're talking about the first mode of analysis or the second mode of analysis. But, if you were going to rule out recognizing any additional norms, I think you would just be sort of grandfathering the original three and potentially other things that the First Congress would have recognized. You would be saying that the door isn't open to recognizing what we would decide today under modern international law or analogous in some way. The second mode of analysis that -- that -- that we're talking about under Sosa 1 step 2 is the one that the Court employed in both Kiobel and in Jesner. And so my friend was just talking about all the ways in which Jesner required a step 2 analysis to be done in a categorical level. This responded to questions from several of you. The same thing was true of Kiobel. In both of those cases, the Court essentially skipped over the question of whether there was a norm that was established and said that going to step 2 concerns -- in Kiobel, it was the idea that principles underlying the presumption against extraterritorial application of statutes would be applicable. We think the same thing should also be true here of the Central Bank principle. And -- and in Jesner, the Court said that it was looking at a categorical matter at a scope of liability question. Even though it wasn't about the norm, it was saying that the question of is this category of defendant going to be held liable, said we're going to consider that on a categorical basis. And the fact that it's going to present foreign policy concerns 1 in many cases, not necessarily all cases but in many cases, was sufficient to say you're going to categorically rule out foreign corporations as defendants. And we think that the same thing should be true for aiding-and-abetting claims because the mine-run of those claims thus far has involved cases like this, has been allegations that somebody has aided and abetted a primary violation that was happening in a foreign country, often by state actors because many of the norms -- many but not all the norms need to be done by state actors. And, therefore, the entire case is parasitic on having to prove that foreign government officials engaged in serious human rights violations in their own countries, and that --
To -- to -- to --
“This appears to be a fragmented, stuttering utterance with no discernible content or sentiment. The repetition of 'to' suggests the speaker is gathering thoughts or being interrupted, making it predominantly neutral/procedural with slight clarifying intent possible.”
But, if we take away --
“This truncated utterance beginning with 'But, if we take away --' suggests a counter-argument or hypothetical being posed, likely challenging the petitioner's position. The adversarial 'But' signals some skepticism or concern, though the incomplete nature makes definitive classification difficult.”
-- is necessarily going to raise foreign policy concerns in many cases.
Mr. Gannon, if we -- if we sort of took away that aspect of this case, which I understand you to have 1 fundamental disagreements with, but just focus more on what's presented to us here, which is this aiding-and-abetting question, and I guess one way to think about this, about how we should think about aiding and abetting, is if you take the three original of Blackstone, why it is -- suppose that this were -- this were a case only about that, you know, and then the question is does that also include aiding-and-abetting offenses, what would you say? How should we analyze that question?
“The Justice is intellectually exploring a hypothetical scenario, asking counsel to focus on the aiding-and-abetting question in isolation using a Blackstone framework. The tone is curious and exploratory rather than challenging, with the Justice constructing a thought experiment to test how the legal analysis should work, which is characteristic of engaged intellectual inquiry.”
Well, as -- as my friend just pointed out, I do think that the foreign policy concerns are reduced in the context of those -- those three norms because of what we point out in our brief, and I think that the Court understood this in Kiobel, that -- that those cases, the primary violation is generally going to be occurring in the United States or on the high seas, not in the territory of a foreign country.
And so I -- I do think that if you're going to look at this from the other side and sort of try to say are there 1 place -- are there pieces of aiding-and-abetting liability that would pose fewer threats, I think the ones that -- where the primary violation is not in a foreign country is a good place to start. I wouldn't just limit it to cases that involve foreign governmental officials.
But then I -- I take it what you're saying is, because those foreign policy concerns are less, our analysis would be different. You might come out with a rule that said, okay, as to piracy, aiding and abetting goes along with it, is that correct?
“The Justice is actively working through the logic of counsel's argument, seeking to confirm their understanding of the position ('I take it what you're saying is...') and testing whether a specific legal rule follows from the reasoning. This is primarily a clarifying question with intellectual engagement, as the Justice is constructing a potential doctrinal outcome from counsel's premises.”
I would say two other things with -- we still have two other main reasons why we think that, under step 2, that the Court should be cautious about recognizing aiding-and-abetting liability. One is to say --
I mean, one question is whether step 2, Sosa, applies if the question is the original Blackstone Three. And then the question --
“The Justice appears to be intellectually exploring the structure of the legal analysis, breaking down the two-step framework from Sosa and its application to the Blackstone Three categories. This reflects engaged curiosity and analytical clarification rather than skepticism or hostility.”
Oh, I think very much so.
And then the question 1 whether there's secondary liability that comes along with it. You could say, well, Sosa doesn't apply sort of for two reasons. First, it's not a separate cause of action. Sosa was designed with the question of new causes of action in mind. Aiding and abetting is not a cause of action, and it's also not new. I mean, if the -- if the idea is, back then, when there was an accepted norm of piracy, was there also an accepted norm of aiding and abetting piracy. It doesn't sound like a question that one would naturally apply Sosa to.
“The Justice is intellectually engaging with the legal argument, actively constructing a reasoning framework that suggests Sosa may not apply to secondary/aiding-and-abetting liability. The tone is exploratory and somewhat sympathetic to the argument being tested, with the closing line ('It doesn't sound like a question that one would naturally apply Sosa to') suggesting mild approval of the logic being developed.”
Well, I -- I don't think that's true in light of the way the Court approached its analysis in Kiobel and Jesner, because I think that foreign corporations are not liable for -- for piracy. And I think that an attack on an ambassador that happens in a foreign country is not going to touch and concern the United States in the sense that it was probably going to survive Kiobel. And so, in both of those instances, I think that Sosa itself is recognizing that just -- just acknowledging the norm isn't enough to say that you're going to get home. 1 And I think that, like, Sosa didn't decide a lot. They left open that there's going to need to be a lot more analysis if we're ever actually going to get to yes. Sosa got off the train at the first stop. And so -- but there were -- it recognized that there are going to be additional stops. And we think that that's why, for aiding and abetting, as the significant recognized category of secondary liability, Central Bank tells us that we expect Congress should speak to that expressly before it does that. And we do think of that as a significant expansion of liability. And then the third reason that we have is the analogy to the TVPA. There hasn't been much talk about it, as much talk about that this morning, but that's the second question presented. If you agree with our position that aiding-and-abetting liability is not included within "subjects" under the TVPA, then we think it is relevant that the one time Congress --
-- has tried to codify a cause of action that is --
Yeah, I got -- I got that argument from the briefs. But if -- if -- if -- so one question that we just talked about was whether Sosa applies at all to this question of whether aiding and abetting comes along with it. You say yes. Even if you're right, what I took from the first part of your answer was that you think that there is a -- I mean, tell me if I've gotten this wrong -- but a separate analysis as to each particular norm that has been recognized. In other words, you would go through the question with respect to piracy or you would go through the question with respect to ambassadorial rights or something like that.
“The Justice is actively working to understand and restate the counsel's argument, using phrases like 'tell me if I've gotten this wrong' and walking through specific examples to confirm their comprehension. This is primarily a clarifying and intellectually engaged exchange, with only mild skepticism embedded in the framing.”
I -- I -- I think you could do it that way. I think that -- that the fact that the Court didn't do that for foreign corporations and extraterritoriality would be a reason to say that because, in the vast majority of -- of any potential norms and the cases that are being brought, frankly, aren't piracy and assaults on ambassador cases, that -- that ruling out that particular potentially theoretical category isn't going 1 to -- to -- to make a big difference. And the Court was comfortable making categorical decisions in Kiobel and Jesner. And we think that that's appropriate here, especially in light of how -- how unwilling the lower courts have been to receive the -- what we -- we took to be a general note of caution in Sosa. And that's not the way the lower courts have been applying the two-step analysis, we think. And --
Can you -- can you talk about that for a moment? What is the need for us to intervene to address? Are there problems? What is the scope of the problems of -- of people not respecting the admonition in Sosa that this is a -- a door to be closely guarded?
“The Justice is probing whether there is an actual need for intervention and asking about the scope of problems with lower courts not respecting Sosa's limiting principle, suggesting both concern about potential overreach by lower courts and skepticism about whether Supreme Court intervention is necessary. The reference to Sosa's 'closely guarded door' signals worry about the doctrinal implications.”
Yeah. I -- I -- I do think that -- that there was -- there was supposed to be vigilant door-keeping. And I -- and I -- and I -- I would say that our view is that the lower courts have been too permissive about acknowledging additional norms and what we would consider to be expansions of the norms, especially including aiding and 1 abetting. We've been trying to get the Court to decide the aiding-and-abetting question since the mid-2000s. That's been a significant category of cases. And I take my friend's point that it's going -- my friend on the other side's point that it's going to be a reduced category after Kiobel and Jesner, but it's not gone, as this case itself demonstrates. The Ninth Circuit held that this -- this is -- this is not -- it doesn't require enough extraterritorial conduct to run afoul of Kiobel, and this is a U.S. corporation. And, therefore, here we are. We're -- we're -- we're still litigating about an allegation where the primary violation that needs to be proved is the thing that generally is going to present foreign policy concerns because it is an allegation that a serious human rights abuse happened in a foreign country in this case and many cases by the way the foreign government --
Can you -- can you --
“This appears to be an interruption or attempt to interject, signaling the Justice wants to speak. The repeated 'can you' suggests either an interruption (mild hostility signal) or a clarifying question being initiated, but without more content it is largely procedural/neutral.”
-- treated mostly its own 1 citizens.
Well, and -- and what lessons should we take from cases like Egbert in the Bivens context and -- and -- and our decisions on Teague about these doors that have been left open?
“The Justice is intellectually exploring how prior precedents (Egbert, Teague) should inform the current case, asking counsel to draw lessons from analogous doctrinal contexts. The phrase 'doors that have been left open' suggests curious probing about the scope of existing doctrine rather than overt skepticism or hostility, making this primarily an engaged, exploratory inquiry with some skeptical undertones about whether those doors remain open.”
We -- we have -- we agree with Petitioners that that is an available argument here to say that -- that you should close the door, that -- that the door having been left open has created too much mischief and that, frankly, it is going to be illusory to think that there's any likelihood that this Court is going to recognize a new norm in which there's going to be liability that isn't very closely tied to one of the original three torts that -- that -- or -- or something else that the First Congress would have recognized. And -- and so we have drawn the analogy from Edwards. And -- and I would say that because this involves common law methodology, by definition, Sosa was saying the Court has been invited by Congress to appeal to the common law in order to recognize individual 1 norms beyond the original three because that -- it requires the Court to exercise common law-making powers. We don't think it requires full-bore statutory stare decisis types of considerations. And there isn't that much reliance, I don't think, when this Court has repeatedly said no to each new question that has been brought to it under the ATS.
Thank you, counsel. It seems to me that you have a serious conceptual challenge, because we've held that the First Congress wanted courts to, you know, look and find the rights of action that are available under -- under common law and -- and Sosa. And now, because the Court has departed from that general approach to statutory interpretation, it -- it is like, you know, a dinosaur that is still on -- on the horizon. And I wonder, you're certainly not being, I would say certainly not being faithful to the First Congress's intent at least as it 1 was interpreted in Sosa. And -- and it seems to me that maybe you can just talk a little bit about how we're supposed to reconcile that -- that challenge.
“The Justice identifies a 'serious conceptual challenge' with the petitioner's argument and directly states they are 'certainly not being faithful to the First Congress's intent,' signaling strong skepticism about the argument's consistency with Sosa and historical precedent. The dinosaur metaphor and the pointed framing suggest the Justice finds the argument fundamentally at odds with established doctrine, though the closing invitation to 'reconcile that challenge' keeps some engagement/clarifying tone.”
Well, I -- I -- I do think that's a bit of a puzzle because of the sort of Erie revolution. This is the thing that -- that Sosa talked about. Both the majority opinion and Justice Scalia's concurrence wrestled with how to deal with that. And I think that they both agreed on the idea that at least those things that the First Congress would have expected to be recognized would be fine, and, therefore, that's why we're grandfathering in the -- the -- what -- what have been called the Blackstone Three torts. And -- but, because the Court now understands better than the First Congress did -- and I understand the uncomfort -- discomfort with that, that it -- that recognizing a cause of action is a legislative endeavor that it's going to do only cautiously -- the Court has repeatedly said in 1 these ATS cases and in the -- and in the Bivens cases that it's not going to extend any further if there's any reason counseling hesitation. And so I'm -- I think that we're reconciling the Court's modern understanding of its appropriate role in the separation of powers with the -- with the fact that the First Congress only wrote a jurisdictional authorization with -- with this expectation that there was a possibility of causes of action being recognized, but now we know Congress can do that. And Congress knows that it's supposed to do that. And that's why Congress enacted the TVPA, because it was codifying Filartiga.
Well, but I still --
“The phrase 'Well, but I still --' suggests an interruption or interjection indicating the Justice is pushing back or not yet satisfied with the counsel's response, signaling skepticism or mild hostility. The 'but' construction implies disagreement or dissatisfaction with the preceding argument.”
The TVPA actually isn't about torture that happens in the United States and it isn't about aiders and abetters. It's about the actual perpetrator acting under color of foreign law. And so Congress did codify that result after it was questioned whether the ATS even allowed Filartiga.
Yeah. In terms of your request, though, that we overrule Sosa, usually, when we overrule a past decision, it's because we think it was wrong. And yet you're not really saying that either when you say, well, we should preserve these -- these three.
“The Justice is probing an internal inconsistency in counsel's argument — asking them to overrule Sosa without actually claiming it was wrongly decided — which is a classic skeptical challenge to logical coherence. There is also a clarifying/engagement element as the Justice seeks to understand the precise nature of the request.”
And I'm not quite sure whether overruling is an appropriate response when we don't think -- I mean, we're not saying that the Sosa decision was wrong when it interpreted the intent of the First Congress. I mean, is that what you want us to say?
“The Justice is probing the petitioner's request to overrule Sosa, expressing doubt about whether overruling is the appropriate remedy while also genuinely seeking clarification about what exactly the petitioner is asking the Court to do. The phrase 'I'm not quite sure' and the direct question 'is that what you want us to say?' signal both skepticism toward the argument's framing and a clarifying inquiry into its scope.”
No. I'm -- I -- I -- we're -- the only question is about the aspect of the Sosa decision that leaves open the possibility, leaves the door ajar to recognizing additional causes of action that -- that Congress wasn't aware of, that the First Congress wasn't -- what -- didn't expect and wasn't aware of. So I understand that -- that in the abstract, Congress might have expected that the 1 law of nations would evolve. That's one way to talk about it. You know, I'm not sure that's what they would have expected. I think, at the -- in the pre-Erie sense, there was an understanding that it was out there. It was the brooding omnipresence. Maybe you discovered new bits of it. But this is all they thought that existed. And so I -- I -- I do think that -- that the Court can draw the line there. And we're -- it's not overruling Sosa. It's not changing the holding of Sosa. It's changing this aspect of whether we're -- we're -- we're possibly leaving this open, but Sosa still at step 2 expected that there would be all sorts of other reasons to be cautious. It expected that we'd be careful about the norms. It expected that there could be other defenses that could be relevant. It expected that there could be case-specific foreign policy concerns that -- that -- we don't think that that's necessary in every case.
Thank you, counsel. 1 Justice Thomas? Justice Alito? Justice Sotomayor?
“This is a purely procedural statement thanking counsel and polling other justices for questions, with no emotional valence or substantive engagement with legal arguments.”
I -- I -- ATS is a cause of action, correct?
“The Justice is asking a basic definitional/confirmatory question about the Alien Tort Statute, seeking to establish a foundational premise. The hesitant phrasing ('I -- I --') suggests genuine clarification-seeking rather than rhetorical challenge.”
ATS is a jurisdictional statute.
Jurisdictional statute, all right. It's a cause of action?
“The Justice is parsing the legal distinction between a jurisdictional statute and a cause of action, seeking clarification on how counsel characterizes the statute. The terse, probing nature suggests some skepticism about the framing, but the primary intent appears to be clarifying the legal basis of the argument.”
They can bring a lawsuit on the Blackstone Three according to you.
“The statement appears to be testing and probing the petitioner's argument by asserting a consequence ('They can bring a lawsuit on the Blackstone Three according to you'), suggesting skepticism about the scope or implications of the position being argued. The phrase 'according to you' signals the Justice is attributing a potentially problematic consequence to the petitioner's framework.”
-- because Sosa has recognized that -- that -- that it was willing to infer that cause of action that Congress had not expressly provided for.
Inferred or not, Mr. Gannon, if you don't want us to overrule -- you want us to overrule Sosa. Do you want us to overrule it to say that even the Blackstone Three, there's no cause of action for them?
“The Justice is pressing counsel on the logical implications of their position—specifically whether they are asking the Court to go so far as to overrule Sosa entirely, including the 'Blackstone Three' causes of action. This combines genuine clarification of the scope of counsel's argument with skeptical probing of whether their position leads to an extreme result.”
No. We are not asking you to overrule Sosa. We are asking you to say that the --
So it's either a cause of action or it -- it isn't. Which is it?
“The blunt, binary framing ('it's either X or it isn't') signals strong skepticism about the petitioner's argument, suggesting the Justice finds it internally inconsistent or evasive. The sharp, confrontational tone edges toward mild hostility, though the demand for a definitive answer also has a clarifying dimension.”
It -- the ATS itself is not a cause of action. Sosa recognized that it was just a jurisdictional statute.
It recognized that it had the ability, at the time when it was enacted, that the courts were able to infer causes of action. And --
All right. Now -- so that -- that --
“This fragmented, hesitant utterance ('All right. Now -- so that -- that --') appears to be a transitional or procedural interjection, likely indicating the Justice is moving to a new point or processing the previous response. The broken syntax suggests no strong emotional valence, making neutral the dominant classification.”
-- and -- and that -- and that -- that those three were -- were -- would have been inferable at the time and, therefore, at least those would be recognized.
All right. So Bivens and -- Bivens and Egbert don't help us because, whether it's express or implied causes of action, they've been created for the Blackstone Three, correct? And you're saying don't add a fourth? Don't add torts or --
“The Justice is actively working through the legal framework, synthesizing the argument about Bivens and Egbert to confirm understanding of the petitioner's position. The questioning style ('correct?' and 'you're saying...') indicates the Justice is seeking to clarify and map the argument onto existing doctrine while intellectually engaging with the boundaries of the Blackstone Three framework.”
We're saying not to expand -- extend it any further.
And that's why we think Egbert is relevant.
Now let's -- so what you're basically saying, if there wasn't a torture, the TVPA, there wouldn't be an actionable cause of action at all for torture or extrajudicial killing even though, when Congress addresses that, it doesn't just create a cause of action under the ATS. It expands liability to include the potential for U.S. citizens, not just for aliens to sue, correct?
“The Justice is actively working through the legal framework by restating the counsel's argument and probing its implications regarding the TVPA and ATS relationship. The 'correct?' ending signals a clarifying intent, while the intellectual exploration of how Congressional action expands liability beyond the ATS reflects genuine engagement with the legal question.”
Yes, it expands the category of plaintiffs.
All right. So what you're basically saying is the First Congress, if it had known that there would be an international law -- an international and current U.S. view that torture and extrajudicial killings violate international norms, that that First Congress would not have wanted us to -- to recognize that as a cause of action for aliens -- for aliens?
“The Justice is paraphrasing the petitioner's argument back to them in a way that highlights its potential implausibility — suggesting that the First Congress would have rejected modern international norms against torture and extrajudicial killings as causes of action. The rhetorical framing ('All right. So what you're basically saying is...') signals skepticism about the argument's logic while also partly seeking confirmation of the position being advanced.”
I -- I'm not saying that that's what the First Congress would have 1 expected. I'm trying to -- to -- to be faithful to Sosa's own analysis --
-- which recognized that it would take account of developments that have happened since the First Congress. And it said at that time that it did not see sufficient developments that would preclude it from leaving the door ajar with sufficient caution.
All right. If we disagree --
“This is a very brief, incomplete utterance that appears to be setting up a hypothetical or conditional scenario ('If we disagree--'), which is typical procedural/engagement language. Without more context, the dominant tone is neutral with slight clarifying/engagement elements.”
We think that there have been subsequent developments in this --
-- if we disagree with you that under step 1 of Sosa torture and extrajudicial killings are recognizable under step 1 and we go to step 2, step 2 requires us to look at what the -- what -- whether recognizing that cause of action for torture and extrajudicial killing have foreign policy implications. By the very nature of torture and 1 extra -- extrajudicial killings, a foreign state is involved, correct, because "torture" defined -- is defined by official state action, isn't it?
“The Justice is working through a complex legal framework (Sosa's two-step analysis) and appears to be probing the logical implications of the petitioner's argument regarding foreign policy implications of torture claims. The question contains both clarifying elements (establishing definitional parameters) and skeptical undertones by suggesting that by definition torture involves a foreign state, which would implicate foreign policy concerns under step 2.”
As -- as it is defined in the TVPA, yes.
Yes, all right. But --
“The phrase 'Yes, all right. But --' suggests a partial acknowledgment followed by an interruption or redirection, indicating the Justice is about to pivot or push back. The 'But --' signals a counterpoint is coming, but the utterance itself is too brief and incomplete to assign strong sentiment, making neutral with slight skepticism and engagement most appropriate.”
I -- I would -- I would not expect my friends to agree to that under the ATS. I --
Well, they can answer that. But --
“This is a very brief, procedural-style utterance with a trailing 'But --' suggesting the Justice is redirecting or moving on, consistent with neutral case management. The slight engagement score reflects the implied continuation of an exchange, but no strong emotional valence is present.”
-- I was always -- I was assuming that, okay?
“This brief utterance appears to be a Justice clarifying their own prior assumption during discussion, likely mid-conversation. The phrase 'I was assuming that, okay?' suggests the Justice is explaining their reasoning premise or correcting a misunderstanding, making it primarily clarifying with a neutral procedural quality.”
Yes with respect to the way it's been defined in the TVPA. And -- and we think that --
But -- but if --
“This fragmentary utterance ('But -- but if --') appears to be an interruption or interjection, which research associates with hostility or disagreement. The repeated 'but' suggests pushback or counter-argument forming, though the incomplete nature makes definitive classification difficult, hence significant neutral weight.”
-- Congress has -- has spoken to lots of specific questions in the TVPA that allow actions like Filartiga to proceed.
May you let me 1 finish, okay, with my question?
“The Justice is interrupting or responding to an interruption by counsel, asserting dominance and requesting to complete their question. The phrase 'May you let me finish' signals frustration and mild hostility toward counsel's interruption, though it retains some procedural/neutral quality as a courtroom management statement.”
They'll tell us. I am making the assumption that torture requires official state action. Then, by its nature, whether it's aiding-and-abetting liability or primary liability, the same kind of embarrassment is going to exist, correct? Meaning, if we can sue someone, if we can sue a Chinese agent who happens to come to the United States, for torture in China, China is going to be as embarrassed as if we sue Cisco for that same torture, correct?
“The Justice is actively working through a logical hypothetical to test whether the distinction between aiding-and-abetting liability and primary liability actually matters for foreign policy embarrassment purposes. The rhetorical 'correct?' at the end signals intellectual engagement and some skepticism toward a potential distinction the petitioner may be drawing, while the hypothetical construction reflects curiosity-driven exploration of the argument's implications.”
I -- I think that -- I take the point, but I -- I think that Congress in the TVPA drew a line between the perpetrator --
We can go back to whether --
“This is a very brief, procedural transitional phrase suggesting the Justice is redirecting the conversation. It carries little emotional valence and appears to be an administrative/structural comment managing the flow of argument.”
-- and the aiders and abetters.
Yes, we could go back to whether "subjects" or doesn't.
“This brief utterance appears to be a procedural or transitional remark, possibly acknowledging a point about returning to a textual question regarding the word 'subjects.' It carries minimal emotional valence and reads as largely neutral with slight clarifying or engagement qualities as the Justice seems to be redirecting or acknowledging the argument's scope.”
But assuming that, 1 as I do, that "subjects" means some form of secondary liability, if not primary liability, then tell me what is the foreign policy implications for this suit when President Trump in 2020, when he was talking about the Chinese policy, was encouraging China to respect and not persecute Falun Gong adherents and where he states that he stands by the principle that American technology should not be used to further that persecution? What do we do with that? How do we find that there's potential embarrassment from that? How do we find that there's potential foreign embarrassment from complicity in torture which the Convention Against Torture would not permit?
“The Justice appears to be largely supportive of the petitioner's position, using the Trump administration's statements on Falun Gong persecution as evidence that foreign policy embarrassment concerns would be minimal or nonexistent. The rhetorical questions ('How do we find that there's potential embarrassment...') suggest the Justice is building a favorable argument for the petitioner rather than challenging them, while the intellectual engagement with the foreign policy implications reflects genuine analytical curiosity.”
The Convention Against Torture would permit the criminal prosecution and so would our laws for complicity. And --
So there's less embarrassment from that --
“This appears to be a mid-thought utterance where the Justice is drawing an inference or completing a line of reasoning, likely in response to an argument about institutional embarrassment. The incomplete nature suggests active engagement in building on a point, with possible clarifying intent to confirm understanding of a comparative claim.”
-- than from civil liability?
“This appears to be a mid-sentence fragment completing a comparison question, likely seeking clarification about the distinction between criminal and civil liability. The clarifying nature dominates as the Justice seems to be probing a specific distinction, with some skepticism about the argument's logic.”
I'm saying that Congress has already drawn the line with respect to 1 both -- both halves of this, on the -- they have implemented the TVPA by enacting a -- a criminal statute that applies everywhere in the world and includes complicity. I agree with that. But that's a -- that's a cause of action that is brought by federal prosecutors --
I -- I just want to get what you're -- what you're -- what you're suggesting is that there is less embarrassment for the government from having an individual pay damages -- there's more embarrassment for an individual paying money than from a criminal prosecution, where that person is put in jail for the same act of torture?
“The Justice is challenging the logical coherence of petitioner's argument, pointing out what appears to be an absurd implication — that civil damages cause more governmental embarrassment than criminal prosecution and imprisonment. The rhetorical framing and incredulous tone signal strong skepticism, with a touch of hostility in the pointed contrast being drawn.”
I'm saying that we at least have control over when the criminal -- federal criminal prosecution is going to be brought. And I was -- and I say that we have -- of course, we object to human rights violations that are occurring in China and in other countries. But we have other foreign policy tools that don't require individual 1 lawsuits filed by lawyers that -- that don't have to necessarily comply with all of the concerns that we have about a -- a -- our relationship with any particular foreign country at the time. And so I -- I appreciate the fact that Sosa would -- holds out the possibility of a case-specific objection. If we said this is flagrantly incompatible with our foreign policy right now, I would -- I would hope that the courts would listen to an objection like that. But, as I was saying to the Chief Justice before --
Exactly, but you haven't raised that here.
“The phrase 'Exactly, but you haven't raised that here' combines brief agreement with a pointed procedural rebuke, suggesting the Justice is cutting off or dismissing a line of argument on waiver grounds. The 'but' pivot signals skepticism or mild hostility toward the argument's admissibility, with an element of procedural neutrality.”
Because we think that, as a categorical matter, the notion of civil aiding-and-abetting liability goes beyond what the convention requires and goes beyond what we think Congress has codified in the TVPA, that we think that Congress should be the one making that decision. And it's not just the foreign policy concerns. It's also the Central Bank idea that we know that Congress is aware that there's no 1 presumption of aiding-and-abetting liability in civil cases, unlike criminal cases.
Justice Kagan? Justice Gorsuch?
I -- I'm not sure I understand why we would need to overrule anything about Sosa. We said there that we had no basis to suspect Congress has any examples in mind beyond those three Blackstone torts, and we said that future developments might preclude federal courts from recognizing new causes of action.
“The Justice expresses uncertainty about the need to overrule Sosa, signaling skepticism toward the petitioner's framing that such an overruling is necessary. The 'I'm not sure I understand' construction combines genuine clarification-seeking with implicit doubt about the argument's premise, as the Justice proceeds to summarize Sosa's holdings in a way that challenges the petitioner's position.”
I think that the developments, the reference to developments, there hadn't been intervening developments. And I agree with you, Justice Gorsuch, that when you think that --
And in 20 years plus since those, so there have been some developments.
“The Justice is noting that time has passed and developments have occurred since some prior point, suggesting intellectual engagement with the evolution of the legal landscape. The tone appears exploratory rather than critical, with a mild clarifying intent about the relevance of those developments.”
There -- there have been. And we -- we agree with that line of analysis. And so, under -- under that way of thinking about it, I think you would be saying that the door is no longer ajar because you are taking 1 account of the things that the Sosa Court said could be taken account of. And we think that you can -- you could do that with respect to, you know, individual norms. At step 2, you would be -- you would be applying a Sosa analysis. If you adopt the broader argument and said that we think intervening developments in this Court's understanding of how recognition of private rights of action is a legislative endeavor that it is not going to engage in, it's not going to extend any farther what has already been recognized, that would be consistent with what the Court has been saying in both the ATS and the Bivens cases in the last 20 years.
And each one of these that comes to us, we've -- we've rejected attempts to expand beyond those three?
“The Justice appears to be checking their understanding of precedent history while also subtly probing whether the petitioner's argument seeks to expand beyond established categories the Court has previously rejected. The question has both a clarifying dimension (confirming the pattern of precedent) and a skeptical dimension (implying the current argument may similarly be an improper expansion).”
-- you -- you -- you rejected some aspect that -- that -- that -- that was being disputed in that case here. That's -- that would -- that's effectively the second argument here. If you go for aiding and 1 abetting, you'd be doing the same thing with respect to that category that you did in Kiobel with respect to extraterritorial applications and --
-- in Jesner with respect to foreign corporations. You'd be sort of cutting out another -- another sort of paradigmatic case that has arisen and is still arising after -- after the -- after this Court's previous cases.
In Footnote 21 of Sosa, the Court said, "there's a strong argument that federal courts should give serious weight to the executive branch's view of the case's impact on foreign policy." And when I was on the court of appeals, I took that seriously in terms of executive branch statements. In your -- from your perspective, are lower courts sufficiently paying attention to executive branch statements, as dictated by 1 Footnote 21?
“The Justice is drawing on personal appellate court experience to frame a substantive question about whether lower courts are properly applying Sosa's Footnote 21 guidance on executive branch deference. The tone is intellectually engaged and exploratory, inviting counsel's perspective on an important doctrinal issue, with mild concern about whether the framework is being properly applied.”
Well, I think that in the early to mid-2000s, we filed statements in individual cases, and in some of this Court's cases, we filed -- we made statements in briefs that this particular case presents foreign policy concerns. We said that in Jesner. We said that the Jordanian government was concerned about it. They filed their own amicus brief. This Court took those concerns seriously, but it also went beyond that to say that it was concerned about the -- the threat posed by the general category. And with respect to the lower courts, I would say that I'm not aware of recent cases where we've -- we've filed what I would call a case-specific concern that has been disregarded by the lower courts. In this case, we -- we didn't file individual statements. There was -- there was another Falun Gong case that -- that initiated -- was initiated in the early 2000s where I think, even before Sosa, the State Department filed a letter expressing its concerns about -- about 1 the potential interference. But, as I -- as I've been saying, we think that at step 2 of Sosa, you don't need to approach that with -- with only case-specific concerns in mind. And -- and I wouldn't think lower courts did either, would need to either. And that's why they could have -- the Ninth Circuit here, I think, should have recognized that we've been concerned about aiding and abetting as a category whether or not we've objected to foreign policy concerns presented by the allegations in this case. But, of course, this case still does require plaintiffs to prove, and they admit that they're going to be proving, that -- that the primary violations happened in China --
-- at the hands of the Chinese government.
I got that part. And that -- that also distinguishes -- the executive branch statement of interest in civil cases also explains why, when you bring a criminal prosecution, the executive branch is controlling that decision.
“The Justice appears to be actively engaging with and building upon the argument, signaling understanding ('I got that part') while extending the logic to distinguish civil statements of interest from criminal prosecutions. The tone is intellectually engaged and somewhat approving, as the Justice seems to be synthesizing and reinforcing the argument rather than challenging it.”
-- the federal criminal prosecution that applies extraterritorially --
-- which is -- is the -- is what Congress enacted in order to implement Article 4 of the Convention Against Torture.
Can you just spell out generically what are the foreign policy concerns in some of these cases --
“The phrase 'Can you just spell out generically' is a textbook clarifying request, seeking a plain explanation of the foreign policy concerns at issue. The mild concern weight reflects that foreign policy implications may be on the Justice's mind, but the dominant tone is one of genuine inquiry rather than challenge.”
-- in a little more detail instead of kind of the bumper sticker? What --
“The Justice is requesting a more detailed explanation rather than a simplified summary, using the slightly dismissive phrase 'bumper sticker' to characterize counsel's argument as overly simplistic. This is primarily a clarifying request, though the 'bumper sticker' language carries a mild edge of skepticism or hostility toward the superficiality of the argument presented.”
Well, I mean, they -- they -- they can be different, but they almost always are alleging very serious human rights violations that happened in a foreign country, either because the foreign country was participating in it, its officials were participating in it, they were supposedly looking the other way, they are not providing adequate redress for people that are there, and, therefore, they have to come to U.S. 1 courts in order to vindicate them. In the South Africa cases, we expressed concern --
But how does that harm the United States because -- to allow proof of this human rights violation by foreign officials or foreign governments?
“The 'But how does that harm...' construction signals skepticism toward the petitioner's argument that allowing proof of human rights violations by foreign officials would harm the United States, while also containing a genuine clarifying element seeking the logical basis for the harm claim.”
Well, I -- I -- I mean --
Because I think that's what you're saying.
“The phrase 'Because I think that's what you're saying' is a classic clarifying statement where the Justice is confirming or restating their understanding of counsel's argument. It signals an attempt to accurately characterize the position being advanced, which is a neutral, clarifying intent.”
I -- I am saying that, by definition, foreign countries are often concerned about the fact that these lawsuits are being litigated here. And I was mentioning the South Africa cases in the 2000s, and in American Isuzu, where we filed an amicus brief about aiding-and-abetting liability, the South African government expressed concerns that having these cases litigated in the United States about apartheid and -- and grievous things that happened under apartheid was inconsistent with the Truth and Reconciliation Commission. They had their own process that they wanted to operate, and they thought that having plaintiffs' lawyers making their cases 1 involving 50 large corporations about all sorts of things that had happened over decades to lots of people in South Africa, that U.S. courts weren't the appropriate forum to be hashing that out. And in -- in the Arab Bank case, Jesner, Jordan was concerned about the threat posed to a mainstay of its economy. There are all sorts of ways in which these lawsuits can threaten the -- the relationship that we have, the bilateral relationship we've had -- we have with these countries. And in -- I -- I understand my friends on the other side to say -- there's an amicus brief that says that you should internalize all of these costs. The corporations should have to pay for this. But, frankly, that's a policy judgment that should be made by Congress. And -- and to the -- to the extent that the executive branch can bring criminal prosecutions when it wants to, when it thinks that that's appropriate, can file individual case-specific objections if it needs to, and Congress can provide for specific causes of action, as it did with the TVPA, where it has already said, you know, we're 1 going to -- we're going to take the costs associated with allowing Filartiga to be litigated, where, you know, a Paraguayan governmental official who tortured somebody to -- is alleged to have been tortured somebody to death is going to be held liable in a U.S. court for those actions. Congress said that it wanted that action against the perpetrator to be available, but we've continually said that we think that it shouldn't be expanded to aiders and abetters.
On that last point about Congress, this is my last question, and this is picking up on the Chief Justice's and Justice Gorsuch's question. By leaving the door somewhat ajar but never quite getting there, we've maybe misled Congress into thinking: Oh, we don't need to do anything about these human rights things, the courts are taking care of it. And -- and I'm concerned at a separation of powers level that we're not really allowing suits to go forward, but Congress thinks we are because of a lack of 1 clarity in our case law. And I just -- that's just an observation I have after 20 years of dealing with these cases, and I'm -- I just want to get your reaction to it.
“The Justice explicitly states 'I'm concerned at a separation of powers level' and reflects on 20 years of experience with these cases, expressing worry that unclear case law has misled Congress into inaction on human rights issues. The tone is reflective and observational rather than adversarial, combining genuine concern about institutional consequences with an invitation for counsel's reaction.”
Well, I -- I mean, I'm -- I'm hesitant to -- to try to figure out exactly when Congress is incentivized to act and when it isn't incentivized to act in terms of the dialogue between the branches, but we do think that this is a legislative decision that they should make and that in the Antiterrorism Act, the Court -- the Congress responded and said that we're going to acknowledge aiding-and-abetting liability for -- for -- for acts of terrorism by foreign terrorist organizations. And -- and so that's something where Congress is aware. I -- I take the point that to the extent that the door is open, Congress doesn't have a clear incentive to go through and start saying this is the one that we think ought to be codified, as it did with the TVPA after Filartiga and Tel-Oren.
And people put 1 their resources into a court suit rather than lobbying Congress, arguably. But I'll leave it there. Thanks.
“The Justice is making an observation about resource allocation between litigation and lobbying, which carries a mild implicit concern about incentive structures, but the closing 'I'll leave it there. Thanks.' signals a neutral, conversational wrap-up rather than a pointed challenge, giving the utterance a mostly neutral-to-engaged tone.”
Justice Barrett, if I could just pause for a moment. I -- I've been notified that there will be a fly-over of four planes at 11:22, and I just want to announce that so people aren't alarmed. We're told the noise might be -- might be big. I don't know why they didn't check with me, but -- (Laughter.)
“This is a purely procedural/administrative announcement about an upcoming flyover, with a light humorous aside ('I don't know why they didn't check with me'). The humor adds a slight human touch but the utterance is essentially neutral housekeeping with no substantive judicial sentiment toward any argument.”
Well, Mr. Gannon, I'll try to get my question out quickly before the ruckus comes.
“This is a lighthearted, procedural remark referencing the noise or interruptions in the courtroom environment, with a touch of humor. It carries no substantive judicial sentiment toward the argument itself, making it predominantly neutral with slight engagement indicated by the casual, collegial tone.”
More dialogue between the branches.
Mr. Shanmugam said that there were several cases pending in the lower courts or maybe -- maybe one about civil conspiracy and that sort of secondary liability. Has the United States taken a position 1 in those cases?
“The Justice is genuinely seeking information about the government's position in related lower court cases, referencing opposing counsel's earlier argument. This is primarily a clarifying and exploratory question with some concern about the broader implications of pending cases on secondary liability.”
No. I think -- I think my friend was talking about a Fourth Circuit decision. We were actually a third-party defendant in that case, and we didn't address those issues in that case, and we haven't taken a position about conspiracy there.
Do you have one here?
“This is a very brief, direct question likely seeking confirmation of whether a specific case, example, or piece of evidence exists. The phrasing is genuinely clarifying in nature, with minimal emotional valence.”
I think that -- that the -- the aiding-and-abetting analysis, we think, under Central Bank of Denver makes this an easier case, and the foreign policy concerns that require the primary violation to be happening abroad in the vast majority of these cases, I think, make it easy to say that -- that they still present foreign policy concerns in a way that it's possible that the conspiracy analysis would be different. I'm not sure. We -- we just haven't engaged in that analysis yet.
So I guess I'm still struggling with why the concerns that you've raised aren't best addressed on a case-by-case basis. I understand that you'd like to do this categorically, but it seems to me that you've mentioned other circumstances, other cases where these claims have been raised and the foreign nation has filed a brief and the government has filed a statement that actually talks about the foreign policy concerns with respect to that particular case. So why isn't that the better way to address Sosa step 2 and the concerns that the United States is talking about?
“The Justice is clearly challenging the petitioner's categorical approach by suggesting case-by-case adjudication is more appropriate, using rhetorical questioning ('why isn't that the better way') to probe the weakness of the argument. The phrase 'I'm still struggling with' signals persistent doubt about the petitioner's position, making skepticism the dominant sentiment.”
Well, I mean, I -- I would say that Kiobel and Jesner basically rejected and even -- and even --
-- and even meet a middle version of that.
In a -- in -- I understand. But they were -- they were looking at a different issue. They -- and here's 1 the -- the real basis of my concern, is the language of the ATS itself and the extent to which Congress has now said that 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. You keep suggesting that this is about the Court expanding ATS or the Court implying a private right of action. This is pretty clear language that Congress does want civil actions by aliens for torts only committed in violation of the nation -- law of nations to be permitted. So I'm worried that your categorical take off the table is actually narrowing the statute in a way that is inconsistent with Congress's intent because aiding-and-abetting liability -- I mean, do you dispute that aiding-and-abetting liability was widely recognized as part of the law of nations at -- at -- at around the time of the founding? I mean, this is not a new thing that we're coming up with. That aiding-and-abetting liability was a part of the law of nations, 1 right, or is?
“The Justice expresses direct concern about the respondent's argument narrowing the ATS statute inconsistently with Congressional intent, while probing skeptically whether aiding-and-abetting liability was part of the law of nations at the founding. The phrase 'I'm worried that your categorical take off the table is actually narrowing the statute' signals both concern and skepticism toward counsel's position.”
I -- I -- I wouldn't -- I wouldn't quite agree with that. And I think that as -- as my -- my friend pointed out, even when Congress went to codify aiding-and-abetting liability at the criminal level for the original three torts, it only did so with respect to piracy. And I think that --
No, I understand. But -- but I'm just -- I'm going back to the original language of the statute. What did Congress mean to authorize here? And you're asking us as a categorical matter to take aiding and abetting out. I could see that if aiding and abetting was something that was not a part of the law of nations, it would be that we were just adding it. I could see that if the Congress hadn't said torts only under the law of nations. I mean, the statute is looking at a particular kind of claim and authorizing it. And now you say as a categorical matter the Court should be taking that off the table.
“The Justice is probing the weakness of the petitioner's argument by returning to the statutory text and questioning whether Congress intended to exclude aiding and abetting liability, using a series of 'I could see that if...' constructions to highlight why the argument doesn't hold up—classic skeptical questioning of the opposing counsel's categorical position.”
I could appreciate 1 in particular cases where having this particular person bring this particular claim against a corporation is going to raise significant foreign policy issues, but the U.S. hasn't filed such a statement in this case, correct?
“The Justice acknowledges the legitimacy of the argument in principle but then points out that the specific factual predicate (a U.S. government statement raising foreign policy concerns) is absent in this case, suggesting skepticism about whether the argument applies here. The trailing 'correct?' seeks confirmation of a factual premise while implicitly challenging the petitioner's reliance on foreign policy concerns.”
It's correct that we haven't filed a statement in this case.
And is it the position of the U.S. that this particular claim is going to create a foreign policy problem?
“The Justice is seeking a direct factual/positional answer from the U.S. government's representative about whether this specific claim poses foreign policy concerns, indicating a clarifying intent. The underlying tone also carries mild skepticism and concern about the foreign policy implications of the claim.”
We -- we haven't taken that position because we don't think that we need to. And we think that the Court has --
No. That's just because you're interpreting the statute that way.
“The blunt 'No.' followed by a dismissive reframing of counsel's statutory interpretation signals both skepticism and mild hostility. The Justice is rejecting counsel's framing outright and suggesting the argument is merely a product of a particular interpretive choice, not an inherent legal truth — a classic challenge to the foundation of the argument.”
If I said to you, you need to. My question is, in this case, do we have the kind of foreign policy issue that you say justifies taking this off the table categorically?
“The Justice is directly questioning whether the specific case meets the threshold the counsel has argued justifies categorical exclusion, probing the applicability of the counsel's own standard to the facts at hand. This combines genuine clarification about the factual predicate with skeptical pressure about whether the argument actually fits this case.”
Potentially, yes, this is going to require these torts to be proved, the 1 primary violations about what Chinese officials did in China needs to be proved in a U.S. court, and that's necessarily going to create sensitivities --
-- in our relationship with China, and --
Okay. But -- but -- but what I'm saying is we could imagine a world in which China says we don't care what you all do and in which the United States has not made a statement about its actual impact in this case, and that is weighed against a statute that appears to be allowing these folks to bring this kind of claim. And so I -- I -- I'm just -- I'm nervous about the categorical nature of this because I think the United States can protect its interests if it does make a statement that this particular claim is a problem, but to say never can a corporation be sued for aiding and abetting even serious human rights violations -- first of all, the aiding and abetting is not doing the work there in terms of the foreign policy problem. What's doing 1 the work, as you've said repeatedly, is the underlying claim against the foreign government. And so you could imagine a world in which some foreign government says, I don't care if Cisco is being sued about this. Even if Cisco presents a bunch of -- or excuse me, the plaintiffs present a bunch of information about the underlying torture, what difference does it make? They can't do anything to me. I don't care if that's going on. So why would Cisco be absolved and the plaintiffs here not get a remedy on the basis of some speculation about a foreign policy concern that the United States is not even willing to say in writing right now would actually occur?
“The Justice is strongly challenging the petitioner's argument by questioning the categorical nature of the foreign policy exception, pointing out that the US government hasn't made a written statement about actual harm, and constructing hypotheticals that undermine the petitioner's position. The rhetorical question at the end ('So why would Cisco be absolved...') signals significant skepticism toward the petitioner's foreign policy rationale, while the expressed nervousness about categorical rules reflects genuine concern about the implications.”
Sometimes having to take a position about an individual case has its own foreign policy consequences. And I wouldn't say that we need both governments to actually come and -- and have negotiations in front of a district court with declarations about what is the threat posed by this particular case. But stepping back, we made a version 1 of this argument in Jesner about corporate liability, and we said that corporate liability was something that was recognized at the founding and, therefore, you shouldn't rule it out categorically. And this Court rejected that argument. And so -- and -- and I think that that is consistent with -- with the caution in Sosa, it is consistent with the categorical way that the Court approached questions like extraterritorial application and -- and corporate liability in Kiobel and Jesner to say that we're not treating these at a granular case-by-case level. And we also have, in addition to the foreign policy concerns, we have the Central Bank of Denver presumption that Congress, from the beginning, has distinguished between aiding and abetting for criminal liability purposes and civil liability purposes.
And that's a general rule that we think applies.
Thank you, counsel. 1 Mr. Hoffman. ORAL ARGUMENT OF PAUL L. HOFFMAN ON BEHALF OF THE RESPONDENTS
“This is a purely procedural statement transitioning between counsel, thanking one attorney and calling the next. It contains no emotional valence or substantive judicial sentiment.”
Mr. Chief Justice, and may it please the Court: This case is about the systematic persecution of a religious minority by Chinese authorities and Cisco's partnership in that persecution. Each of the plaintiffs were tortured or killed by Chinese authorities because of their religious beliefs. Cisco provided substantial assistance to this persecution from U.S. territory by providing a customized surveillance system designed to identify Falun Gong believers to Chinese authorities for detention and forced conversion through torture and other barbaric treatment. Under Petitioners' theory, Cisco cannot be held responsible for aiding and abetting these violations no matter how substantial and direct their contributions were. Under Cisco's theory, even the corporate actors who provided the poison gas for Nazi crematoria would not be liable under either the ATS or the TVPA. 1 There's no basis in international law or these statutes under either the ATS or the TVPA for such an absurd result. The First Congress passed the ATS to -- to fulfill this nation's obligation to enforce the law of nations. Then, as now, aiding and abetting law of nations violations is itself a law of nations violation, meeting the Sosa test. There are no categorical reasons for excluding aiding-and-abetting liability from the ATS. If any particular case raises foreign relations or other issues, the federal courts have many tools to address those issues on a case-by-case basis. Nor is there any basis to deny aiding-and-abetting liability under the TVPA. Congress intended the TVPA to supplement the ATS for torture and extrajudicial killing claims. Cisco subjected Falun Gong believers to torture and extrajudicial killing by identifying them and delivering them to their torturers. Such conduct has violated international law at least since Nuremberg. This Court should not give the green light to U.S. corporations acting from the 1 United States to help foreign governments commit torture or extrajudicial killing. I welcome the Court's questions.
Mr. Hoffman, how available was -- were -- or common was aiding-and-abetting liability in tort cases in 1789?
“The Justice is asking a historical/foundational question about the common law background of aiding-and-abetting liability in tort at the time of the Founding, which reflects genuine intellectual curiosity and engagement with the legal history underlying the case. The question is probing but not hostile or skeptical—it seeks factual clarification to help frame the legal analysis.”
Well, according to the historians' amicus brief and, if, Justice Thomas, you recall, in Sosa, this Court relied very heavily on the same historians and their analysis, the historians say that civil -- civil aiding-and-abetting liability was very much available in the common law, but, more importantly for this case, that aiding-and-abetting liability or accessorial liability was available for law of nations violations, including the -- the three that this Court identified in Sosa. But there were other law of nations violations. Even in Blackstone, there were other law of nations violations at the time. If you look at the Bradford opinion, for example, they were talking about violations of neutrality, aiding and abetting pillage. It 1 was not -- at the time, the law of nations violations were not limited to those three. Nor is the -- the language of the statute. The statute says that -- that aliens can bring a case for a tort only committed in violation of the law of nations. It doesn't say in violation of safe conducts or -- or piracy or the norms that exist in 1789. It says to -- to enforce the law of nations by means of a tort action. And I think the significance of what this Court did in Sosa, which really did reject a lot of the arguments that -- that are being made, I think, by the other side, was to say that based on the history, Justice Souter's opinion for six members of this Court said that the door was not closed, that -- that -- that the federal courts had not lost their ability to -- to handle tort actions for violations of the law of nations. And Congress has never done anything since 1789 --
-- to take away that mission.
I mean, if we just limit ourselves now to 1789, the Blackstone Three, plus any more that might have existed then, is it so clear to you that aiding and abetting functioned the same way and was recognized to the same extent with respect to all of those causes of action? I thought Judge Bumatay made a pretty good case that, in fact, this -- it kind of was norm by norm, that the evidence for aiding and -- aiding-and-abetting liability was much stronger with respect to piracy than it was with respect to ambassadorial violations and then maybe even a step down with respect to the safe conduct violations. So why shouldn't we think of this as whatever the norms are, whether it's the Blackstone Three, whether it's other norms that would have been recognized in 1789, or, as you think, whether we can go beyond the 1789 norms, whatever the case, that aiding-and-abetting liability should be thought of norm by norm rather than all in a sweep?
“The Justice is actively probing the respondent's sweeping claim about aiding-and-abetting liability by citing Judge Bumatay's dissent approvingly, suggesting the Justice finds merit in a norm-by-norm approach over a blanket rule. This reflects genuine intellectual skepticism toward the respondent's position combined with engaged exploration of an alternative analytical framework.”
Well, I -- I think, from -- from -- I don't -- I don't think we 1 have an objection to that. I think the -- the issue for us -- I mean, first of all, we've been criticized for asking for a categorical rule. The lower courts have --
Everybody's doing categorical rules --
“This appears to be an mid-thought interjection, possibly pushing back on or noting a broader pattern that 'everybody' is using categorical rules, suggesting intellectual engagement with the argument and mild skepticism about the approach being distinctive or correct.”
We're -- we're -- we're --
-- on both sides here. So you're no less than Petitioners.
“This appears to be a procedural or comparative observation by the Justice, noting that the respondent has equal standing or time as the petitioners. The tone is largely neutral with slight engagement, as the Justice seems to be leveling the playing field or acknowledging symmetry between the parties.”
My only point is that the lower courts have all accepted aiding-and-abetting liability. We've been litigating aiding-and-abetting cases for the last 30 years. No court has said so far at the circuit court level that there isn't aiding-and-abetting liability, and they've done that based on their analysis of customary international law. With respect to the particular norms, we're happy under the ATS to accept what the scope of the law of nations violation is because that was the point of it. The point of it for -- for the founders was, if -- if there was a violation of the law of nations, this 1 Court was opening its courts, its new federal courts, to handle those cases in tort. And that -- that -- that satisfied our obligation under international law as a new member of the international community to -- to say that to the international community. We will do that. And it also helped to handle situations where the United States would have been responsible if they had not -- if we had not acted. Marbois is a perfect example of that, the Marbois incident, where the Continental Congress had no means at that point and -- and was left to the courts in Pennsylvania to litigate that case. Marbois was on their minds. And as Justice Souter said --
So on -- so on -- on that, Mr. Hoffman --
“This utterance is a fragmented, procedural interjection where the Justice is simply attempting to address counsel by name and begin a question. The repetitive 'so on' phrasing suggests a conversational restart with no clear emotional valence, making it predominantly neutral.”
-- Sosa recognized that -- that and said, you know, there's -- undoubtedly, the ATS was there to create jurisdiction in federal courts to hear cases. Whether it created a cause of action was more ambiguous.
“The Justice is engaging intellectually with the legal history of the ATS as interpreted in Sosa, summarizing the ambiguity around jurisdiction versus cause of action. The tone appears exploratory and informative rather than adversarial, suggesting intellectual engagement while possibly laying groundwork for a future challenge.”
If I might just --
“This is a very brief interjection — 'If I might just —' — indicating a Justice attempting to interject or interrupt, likely to ask a question or redirect. The truncated nature suggests it's procedural/transitional with no clear emotional valence, hence predominantly neutral with some clarifying intent.”
That's all right. It's all right. But let me just spit it all out.
“This utterance is largely procedural and self-directed, with the Justice reassuring counsel while indicating they want to complete their thought. The 'That's all right' signals mild approval/reassurance, while 'let me just spit it all out' is a neutral procedural statement about continuing their own question or comment.”
And then you can have at it.
“This is a procedural/administrative statement granting counsel the floor to proceed with their argument. The phrase 'have at it' is colloquial but functionally neutral, simply signaling that counsel may begin or continue their presentation.”
But Sosa was willing to spot that there might be three causes of action but recognized, really, the job for creating causes of action, because of foreign policy concerns, as sympathetic as this case -- particular case certainly is, that the responsibility for creating causes of action generally lies not with judges but with Congress, and it said, well, there -- we know there are these three that we had -- they had in mind, but we just don't know about anything else and -- and we should be really skeptical. And -- and then, in Jesner, we said, in light of the foreign policy and separation 1 of powers concerns inherent in ATS litigation, there is an argument that a proper application of Sosa would preclude courts from ever recognizing any new causes of action under the ATS. And I guess I -- I just want to throw back to you Justice Kavanaugh's questions, which are, if all that's true, and that's our law, are we kind of creating a mousetrap for -- for -- for plaintiffs in cases like this where you come and you bring -- you bring something that expands beyond the three in some way, shape, or form; every time, you lose? And are we -- are we masquerading as to where the real responsibility and where -- where your efforts belong? Do they belong in the courts or maybe across the street?
“The Justice is expressing genuine concern about the structural problem of ATS litigation — specifically whether courts are creating a 'mousetrap' for plaintiffs by entertaining claims they are constitutionally or institutionally bound to reject. While referencing precedent skeptically, the tone is more reflective and concerned about systemic implications (separation of powers, foreign policy) than purely hostile, with intellectual engagement in reframing Kavanaugh's earlier questions.”
Well, we've done both. Justice Kavanaugh asked about whether there are only six. I've been involved personally in more cases than six where we've gotten judgments. I would also point out that the Alien Tort Statute was used in the German slave labor cases, the Swiss bank cases, in which over 1 $7 billion of --
I don't doubt there are legitimate applications.
“The phrase 'I don't doubt there are legitimate applications' is a classic concessive setup that typically precedes a 'but...' challenge, signaling the Justice is acknowledging the strongest version of the argument before probing its weaknesses or problematic applications. The partial concession combined with implicit reservation strongly suggests skepticism about the broader claim or its limits.”
The question is whether to expand it. And -- and --
“This appears to be a mid-thought utterance, likely framing a key issue or reframing counsel's argument. The fragmentary nature ('And -- and --') suggests the Justice is either being interrupted or pausing mid-thought, making it largely neutral/clarifying with some engagement as they attempt to define the scope of the question at issue.”
-- and -- and I'm not sure that's responsive to the question.
“The Justice is directly challenging the adequacy of counsel's answer, suggesting dissatisfaction with the response given. The phrase 'not sure that's responsive' signals both skepticism about the argument's relevance and mild hostility through an implicit accusation that counsel is evading or deflecting the question.”
-- I guess what I'm saying is that since Sosa -- before and since Sosa, the courts have recognized certain limited numbers of human rights norms. And Sosa itself recognized that what the modern law of nations was was international human rights law.
But this Court's never actually gone beyond the three.
“The Justice is pointing out a limitation in existing precedent—that the Court has never extended beyond three—which challenges the respondent's argument by invoking the boundaries of prior decisions. This is primarily skeptical in tone, probing the legal basis for going further, with some engagement as it invites the counsel to address the precedential gap.”
But you've never -- you've never considered beyond the three.
Well, we've had Jesner, we've had Kiobel --
“The Justice is referencing prior precedents (Jesner, Kiobel), likely building toward a challenge or contrast with the current argument. This appears to be the beginning of a longer point or question, showing intellectual engagement with the case's legal history while potentially setting up skepticism about how this case fits within those precedents.”
-- we've had Nestle --
“This appears to be a mid-sentence interruption or interjection referencing a case name (Nestle), likely procedural or administrative in nature as the Justice begins to cite precedent. With minimal context, the utterance is predominantly neutral with slight clarifying/engagement elements.”
-- you know, just since -- I mean, that's just in the last decade or so.
“The utterance appears to be a mid-thought interjection emphasizing a temporal point ('just in the last decade or so'), suggesting the Justice is actively engaged in exploring a timeline or trend. The fragmentary, conversational nature indicates intellectual engagement rather than skepticism or hostility.”
And can I respond on those, I think? The -- the -- the Kiobel, Jesner, Nestle series of cases was not about either Sosa -- was about Sosa step 2 and Jesner. It was never about Sosa step 1. No one ever talked about the underlying norms. What -- what those cases involved in the background was an issue about foreign-cubed cases generally speaking. Kiobel was a foreign-cube case. What I mean by that is foreign plaintiffs, foreign defendants, actions taking entire -- taking place entirely outside the United States. And I think that one of the arguments in Kiobel, for example, the U.K. and Netherlands filed a brief that said you should not be sitting in judgment in ATS cases over the conduct of our corporations outside the United States, right? And that's, in fact, what happened in -- in the Footnote 21 in the apartheid 1 cases. The South African government was complaining because three of its corporations were being sued. As soon as those were dismissed, the -- the South African government filed something with the Court saying we don't have any problem with you, you know, considering the liability of your own corporations. That's exactly what the British and the Dutch said in -- in -- in Kiobel. If -- if you want to apply the law of nations to your citizens, which is actually what the Alien Tort Statute was meant to do to begin with, that's fine. But, if you try to apply it extraterritorially, then you run into some international law questions of your own about your own jurisdiction to do that. And so I think you -- and -- and Jesner -- Jesner is a good example --
Are -- are you saying there are no foreign policy implications in this case that are -- that might be weighed by policymakers rather than by judges?
“The question challenges the respondent's implicit position by pressing whether they are truly claiming no foreign policy implications exist, which carries skeptical undertones. However, it also has a clarifying dimension, seeking to pin down the counsel's actual position on a sensitive separation-of-powers issue regarding judicial vs. executive competence in foreign affairs.”
Well, I think, first of all, you heard from my --
I mean, I don't think that's -- I mean, that would be hard to say, right?
“The Justice is pushing back on counsel's argument, suggesting it would be 'hard to say' — implying the position is difficult to defend. The hedging language ('I mean') and rhetorical framing indicate skepticism toward the argument without crossing into outright hostility.”
The -- the -- the government has never -- the United States Government, nor the Chinese government, has ever raised any objection in these cases ever.
Well, we have the United -- we have the United States Government here before us, Mr. Hoffman.
“This appears to be a procedural or administrative remark, noting the presence of the United States Government as a party. The repetition ('we have the United -- we have the United States Government') suggests a minor self-correction mid-sentence, and the overall tone is largely neutral with a slight clarifying or corrective intent directed at counsel.”
But they haven't raised one case-specific foreign policy problem.
What they've said is they don't like the --
So you don't think -- okay. So you don't think there are any foreign policy implications that maybe belong to policymakers rather than judges?
“The question challenges counsel's position by implying they may be overlooking foreign policy implications, suggesting skepticism about their argument. The framing 'maybe belong to policymakers rather than judges' also reflects concern about judicial overreach into executive/foreign policy domain, a classic separation-of-powers worry.”
Well, I think -- I think what -- I think the founders, in passing the Alien Tort Statute, understood very well that handling law of nations issues raises some foreign policy-related questions. And I would also say that those 1 questions were much more extreme and much more fraught in 1789 than they are in 2026. In 1789 -- the Bradford case is a perfect example. In that case, Attorney General Bradford said to the -- to the -- the British plaintiffs or claimants: You have a -- you have -- I have no doubt that there's a -- there's a claim that you can bring under the Alien Tort Statute for what happened in Sierra Leone in the middle of a war between France and England. And so what the founders understood was that the way to handle that was not to ignore the fact that there are problems here, no matter how we decide this case, there's going to be foreign policy issues, either France is going to be unhappy with us or England's going to be unhappy with us. Their answer to that -- and it's an answer that's -- that's -- hasn't changed yet, is you apply the rule of law. You decide the law of nations decision. In all the pirate cases --
Mr. Hoffman, can I --
“This is a very brief interjection where a Justice is seeking to interject or gain the floor during oral argument. The phrase 'can I --' is a standard procedural interruption with no discernible emotional valence, making it predominantly neutral with some clarifying or engagement intent as the Justice prepares to ask a question.”
-- can I ask you a question?
“This is a procedural interjection requesting permission to pose a question, carrying no substantive content or emotional valence. The slight lean toward clarifying and engagement reflects that the justice is about to ask something, but the utterance itself is essentially administrative and neutral.”
I want to ask you a version of the question that the Chief Justice asked Mr. Gannon, and that has to do with the puzzle of this case, which is the post-Erie world when the Alien Tort Statute was enacted in the pre-Erie world. So we have a jurisdictional statute that presupposes the ability of federal courts to recognize common law actions that come from the general law. At the time, I mean, so I think this is the rationale for recognizing those that were recognized by courts at the time the ATS was enacted, at the time, you know, there were these, you know, the Blackstone Three and maybe, you know, something else. But, since then, you know, we've said, courts, don't do that anymore. And that's partly a function of Erie. That's partly a function of our recent line of cases talking about the separation of powers and this being Congress's job. So, if the ATS is a jurisdictional 100 statute that presupposes jurisdiction over causes of action that at the time we recognized courts had the power to recognize, what do we make of that now that it's a jurisdictional statute giving federal courts jurisdiction over something that we say courts generally lack the power to do?
“The Justice is deeply engaged in working through a complex legal puzzle about the ATS's jurisdictional nature in the post-Erie world, exploring the tension between the statute's original presuppositions and modern separation-of-powers doctrine. The tone is intellectually exploratory rather than hostile, though there is mild skepticism embedded in the framing of the doctrinal conflict.”
Well, first of all, I think that if the -- if Congress gives you the power to do that, then you have the power to do that. In other words, if --
So are you saying the ATS is a grant of authority and not just a jurisdictional statute?
“The question probes a key legal distinction about the nature of the Alien Tort Statute, seeking clarification on whether counsel is arguing it grants substantive authority versus mere jurisdictional power. The 'So are you saying...' framing suggests the Justice is testing or summarizing counsel's position, mixing genuine clarification with mild skepticism about the implications of the argument.”
I -- I -- I do take it as a grant of authority and I think that's what Sosa said. Sosa said that notwithstanding the exact point that you made about Erie, because they discussed Erie. They discussed all of -- they discussed Bivens. They discussed a different attitude towards implied rights of action and -- and the authority of -- of -- of the courts to do that. I think what Sosa said almost in so many words is that the federal courts have not 101 lost their -- their capacity to handle tort cases for violations of the law of nations. And that's what -- that's what this statute says the courts can do. And it was not merely a jurisdictional statute in the way we understand it in the sense that you have to wait for further --
But Sosa didn't extend beyond the Blackstone Three.
“The Justice is pushing back on the respondent's argument by asserting a limiting principle from Sosa v. Alvarez-Machain, suggesting doubt that the respondent's position is consistent with that precedent. The declarative framing ('But Sosa didn't...') signals skepticism rather than genuine inquiry.”
Well, but -- but it -- it did in the sense that -- it didn't -- it -- it -- it didn't find that the particular claim in Sosa was valid under its test, right, what Sosa said. And, actually, Sosa cited to Filartiga and Marcos and human rights cases as being the kinds of cases that would be subject to future claims. I don't -- I think there's no doubt reading that opinion that torture and extrajudicial killing and -- and disappearance, the claims that were -- that were litigated in Marcos to judgment would be among the claims that would -- would fit the historical paradigm test, that they clearly are supported by the same level of evidence and the same 102 definiteness and the same acceptance internationally as the -- as the torts that the founders were talking about. And so I -- I don't think there's any way to read Sosa without understanding it as being the -- giving the ability for courts to do what they have done since, right, in terms of recognizing at least certain torts.
Mr. Hoffman, can I follow up on Justice Gorsuch's question and your --
“The Justice is following up on a prior question from a colleague, indicating intellectual engagement and a desire to clarify or further explore the issue raised. The phrasing 'can I follow up' is a standard, collegial transition with neutral-to-clarifying intent and no apparent hostility or skepticism.”
-- point about the foreign-cubed cases?
“This appears to be a mid-sentence fragment asking counsel to address a specific legal point about 'foreign-cubed cases,' indicating the Justice is seeking clarification or engagement on a specific legal concept rather than expressing any strong sentiment.”
It seems to me what the government is saying -- and I just want to get your reaction to it -- is that aiding-and-abetting liability presents the same concerns as what you described as the foreign-cube cases because it's necessarily going to require proof or get into the actions of foreign officials against foreign citizens in foreign countries. Can you respond to that?
“The Justice is presenting the government's argument and asking counsel to respond to it, which is a clarifying and intellectually engaged move rather than a hostile or skeptical one. The phrasing 'I just want to get your reaction to it' signals genuine curiosity and fair presentation of competing arguments rather than advocacy for either side.”
Yes. I mean, two points I would like to make. One is that the reason that the Jesner Court, at least on the face of it, had a categorical rule about foreign corporations was a long history of actual conflict, right? I mean, we had many protests. They were all cases that didn't really have much of a connection to the United States. In Kiobel, it was the existence of a shareholder office in New York. That was the basis for jurisdiction. Everything else was outside the country. And so that's the -- I think that level of evidence might support a categorical rule, but, generally, I think, Sosa step 2 is talking about particular issues. And I think as --
But just on -- sorry, if I can --
“This is a brief interjection where the Justice is politely interrupting to ask a question or redirect the discussion, indicated by the apologetic 'sorry.' The utterance is largely procedural and neutral with a slight clarifying intent.”
-- focus my concern. My -- the -- the government raised the point that aiding and abetting will present the same kinds or very close to the foreign-cubed cases. If you just have a 104 specific response to that.
“The Justice explicitly uses the word 'concern' and references the government's argument about aiding and abetting presenting foreign-cubed case problems, signaling genuine worry about the implications of the respondent's position. The request for a specific response to the government's point also has a clarifying dimension.”
But -- but the real difference to that is that -- and this case is a good example of that -- we are talking in this case about the actions of a United States citizen, right, that has committed actions on U.S. territory that have -- that have -- that have led to the harms that are covered by this statute. What -- what the government is saying, basically, would wipe out all international human rights cases or pretty much most of them, right, because all of them have to do with that. And so what they're saying is that if -- if it's -- if the case involves human rights violations by someone outside the United States, well, then that raises foreign policy issues. I think Congress has pretty conclusively rejected that argument. In the Torture Victim Protection Act, not only do they allow for these kind of cases, they specifically make it extraterritorial and they cover the human rights violations committed by foreign officials on their territory.
On -- on the TVPA, what do you make of the fact that aiding and abetting's not part of the TVPA?
“The Justice is pointing to a potentially significant gap in the TVPA's text (the absence of aiding and abetting liability) and asking counsel to address it, suggesting skepticism toward respondent's position while also genuinely seeking to understand how they reconcile this statutory omission with their argument.”
Well, I think it is. I mean, I think that what -- what --
Well, it's not explicit, and Central --
“The phrase 'Well, it's not explicit' signals mild pushback or skepticism toward a claim, while the incomplete nature of the utterance (trailing off with 'Central --') suggests the Justice is in the middle of making a point or seeking clarification about a specific case or precedent. The combination suggests skeptical probing rather than strong hostility.”
-- and Central -- Central Bank says that's a problem. So just get your response to that.
“The Justice is pointing to Central Bank as a precedential obstacle to the respondent's argument, signaling doubt about the position's validity. The phrasing 'that's a problem' indicates skepticism, though the invitation to respond ('just get your response to that') keeps it from being overtly hostile.”
Well, I guess the -- the question is what Central Bank means, right? In Central Bank itself, the Court was rejecting a presumption in favor of aiding-and-abetting liability and rejecting it. It wasn't creating a presumption against aiding-and-abetting liability. I think what -- what the analysis in Central Bank was they went through the text, the statutory context, the fact that in other securities laws, explicit causes of action did not include aiding-and-abetting liability. So, if you do -- what our position is, is that Central Bank says you look at the text, 106 the statutory context, the legislative history if it's appropriate to look at that, and -- and that gets you your answer. And the real issue is, what was -- what is congressional intent? Now, in the Senate report, the Senate report says liability will extend to those who ordered, abetted, or assisted torture. You can't get any plainer than that from -- from Congress. They didn't know about Central Bank in -- in 1992 because Central Bank wasn't decided until 1995.
I'm a little bit confused. Are you saying that the TVPA language itself includes aiding and abetting, or are you saying that aiding and abetting functions on top of the TVPA language?
“The Justice explicitly states confusion and asks a direct clarifying question to distinguish between two interpretations of the respondent's argument. The phrasing 'I'm a little bit confused' and the either/or framing indicate genuine seeking of understanding rather than skepticism or hostility.”
Well, what -- what our -- what our position is -- Section 2 of the TVPA says that an individual who subjects another person to torture is liable under the TVPA. Our position is that "subjects," under the ordinary meaning of the term "subjects," applies -- first of all, applies to our case, right? 107 Our case is a case that fits the -- the Nuremberg legal model, right, which is identifying people for their persecution and torture. The -- the Einsatzgruppen case is exactly that case, where the defendant came up with lists of communists for killing, right? In this case, what -- what Cisco did was create this elaborate surveillance system to find Falun Gong members so that they could be detained -- detained and tortured.
I guess what I don't understand is, when -- when you look at this language, "subjects to torture" --
“The phrase 'I guess what I don't understand is' signals genuine confusion or a request for clarification about statutory language interpretation. While there is mild skepticism implied, the primary intent appears to be seeking clarification about the meaning of the specific phrase 'subjects to torture' in the text.”
-- do you think that the defendants just fit that language, or do you think that there's an extra step necessary that has to do with aiding and -- and abetting liability to get to that result?
“The Justice is genuinely probing whether the statutory language directly covers the defendants or whether an additional legal step (aiding and abetting liability) is required to reach the result, which is a clarifying question seeking to understand the structure of counsel's argument. There is some engagement as the Justice is intellectually exploring the logical steps of the legal theory.”
Well, we don't think there's -- number one, we do think that the language of the statute applies to the allegations in this case as to this defendant. So we think the TVPA on its terms, based on its text, applies. 108 We also think more broadly that aiding -- that aiders and abetters, under international law, particularly with respect to torture and extrajudicial killing, are people who knowingly provide assistance that has a substantial effect on the commission of the crime. We think that language fits within the term "subjects." And so we would say that at least with respect for torture and extrajudicial killing, because that's all that's involved in the TVPA, that that language includes the international idea of aiders and abetters. And we think that's exactly what Congress had in mind, that's what the legislative history indicates, and -- and there's nothing to indicate that -- and -- and even the other side agrees that "subjects" means something more than the direct torture, right, because they agree that command responsibility is in there. And command responsibility, it's an international doctrine, just like aiding-and-abetting liability. Aiding-and-abetting liability is as established 109 as command responsibility. And command responsibility doesn't have as close a connection or as -- as difficult requirements for liability as aiding and abetting does. And for command responsibility, you have to know or should have known. You don't have to have ordered anything. What you have to -- have to have some knowledge that people who are in the chain of -- of your command are committing violations, and you don't do enough about it --
-- or you don't do anything about it, and --
Do you want to finish? Back to the ATS and --
“This is a procedural, administrative utterance inviting counsel to continue their argument and redirecting to the ATS topic. It carries no emotional valence and is purely facilitative in nature.”
-- the relationship between suits under that statute and the foreign policy interests of the United States, suppose that the United States files a statement that says, on balance, we think that this lawsuit is inconsistent with -- is not in 110 the best interests of the United States' foreign policy. Is that the end of the matter?
“The Justice is posing a hypothetical about the government filing a foreign policy statement against a lawsuit, probing the limits of executive power over litigation. This is primarily intellectual engagement testing the boundaries of the argument, with some concern about foreign policy implications and mild skepticism about whether executive preference should be dispositive.”
I don't know if it's the end of the matter, but I think that the courts have treated U.S. statements of interest in these cases as -- as -- giving them great weight, which is what I think this Court has said they're supposed to get. And -- and I think they would be given great weight. I -- I've been involved in cases where the case has been --
What does it mean to give it great weight? Does that mean the court says, well, okay, that's too conclusory; now explain exactly why?
“The Justice is probing what the practical legal standard of 'great weight' actually means in practice, combining genuine clarification about an ambiguous standard with some skepticism about whether it provides meaningful guidance to lower courts.”
I think the court has within its discretion to say that your statement is too conclusory. And -- and -- and if -- if the statement is the reason we think there are foreign policy problems is that we don't like the way the courts have interpreted the Alien Tort Statute, I don't think that's an appropriate foreign policy point. I think what they'd have to say, as -- as they did -- as the --
You want the -- do you want a district judge to say, in my judgment, you do not have a sound basis for concluding that this would be contrary to the best interests of the United States' foreign policy?
“The Justice is probing the implications of the respondent's position by asking whether they truly want district judges making independent foreign policy judgments—a formulation that highlights the potential overreach of such a standard. The rhetorical framing ('do you want a district judge to say...') suggests skepticism about the practical and institutional consequences of the argument, while also partially serving to clarify the scope of what respondent is actually requesting.”
I think there's going to be very limited -- very limited circumstances where a district court judge could say that. I think, if -- if -- if, in fact --
Okay. I -- I understand the position. You've been making two arguments that are not necessarily consistent regarding the meaning of the ATS, and one has to do with the original meaning, the original understanding of the statute. One has to do with Sosa. Which one is it?
“The Justice is pointing out an apparent internal inconsistency in counsel's two arguments, which is skeptical in nature, while also genuinely seeking clarification about which argument counsel is actually advancing. The direct 'Which one is it?' challenge signals skepticism about the coherence of the position, though it also functions as a clarifying demand.”
Well, I think what -- I think what Sosa did was interpret the meaning of the Alien Tort Statute for the modern law of nations. I think that's what Sosa did. I think what it -- what -- what it tried to do --
So that's not the original meaning.
“The declarative statement 'So that's not the original meaning' is a pointed challenge to the respondent's originalist interpretation, using a rhetorical conclusion to undermine their argument. The blunt, dismissive framing edges toward mild hostility but is primarily skeptical in nature.”
Well, I think what -- 112 Sosa interpreted it as the original, at least parts of it as the original meaning, one of them being that no further action by Congress was necessary for the courts to entertain claims for torts committed in violation of the law of nations.
Well, it's arguably inconsistent with the original understanding for at least two reasons. One has to do with the way the role of federal courts was understood before Erie. The other is something that Mr. Gannon referred to, which was the understanding of the nature of the law of nations at the end of the 18th century. Was it the same as it is today?
“The Justice is probing the historical and doctrinal foundations of the respondent's argument by raising two potential inconsistencies with original understanding, suggesting skepticism about the position. However, the framing also reflects intellectual engagement and curiosity about the evolution of legal concepts, particularly the nature of the law of nations in the 18th century versus today.”
I think the law of nations has evolved. I think it's now commonly understood to be customary international law. That's what we call it. I think that the mechanism of the creation of customary international law has somewhat changed in terms of the more -- multilateral treaties and that kind of thing. But I think it's the same law of nations. I don't think it's a different law of nations. 113 I -- I don't think that it has changed to the point where it is not the same thing that the founders were talking about.
Do you think that the understanding of public international law today is the same as the understanding of the -- the great international law treatise writers of the late -- that were influential at the end of the 18th century? Is it consistent with Grotius and consistent with Vatell?
“The Justice is probing whether modern public international law aligns with foundational Enlightenment-era treatise writers like Grotius and Vattel, suggesting skepticism that contemporary interpretations may diverge from original 18th-century understandings. The intellectual curiosity and historical framing also signal genuine engagement with the theoretical foundations of the argument.”
Well, I think, actually, the -- the -- our interpretation or this Court's interpretation, really, in Sosa was based on the obligations of Vatell, for example, which focused on our obligation to -- to police our own citizens' conduct, for example, or things that happened within the U.S. territory that violated the law of nations or not to give safe haven for people that came for --
Well, it -- it was as to the torts that Blackstone singled out and maybe as to some others, but as to human rights violations committed by foreign nations with respect to their own people on their own 114 territory, was that considered to be within the scope of the law of nations at that time?
“The Justice is probing the historical scope of the law of nations, questioning whether human rights violations by foreign sovereigns against their own people were actually covered under the original understanding of the statute. The phrasing 'was that considered to be within the scope' signals skepticism about the respondent's broad reading, while also genuinely seeking historical clarification.”
-- it's clear that -- that international law has changed. And -- and as Sosa recognized, the modern law of nations concerns itself with precisely those questions.
That's the whole basis for Filartiga. That's the -- that's what the Congress said should continue when it passed the Torture Victim Protection Act. It -- in order to enforce at least two of those norms, but saying at the same time that the Alien Tort Statute performs many important functions and should continue and -- and -- and endorsing the Filartiga view of what the Alien Tort Statute should be used for.
Mr. Hoffman, can I just take you back to something you explored with Justice Kavanaugh, which is whether or not aiding-and-abetting liability presents the same concerns as the foreign-cubed cases? And I've been puzzling over that, and 115 I think the government's view assumes that it would because the litigation involving aiding and abetting would necessarily call into question the underlying violation by the foreign country. You would have evidence about the actual torture, et cetera. And I guess what I'm wondering is whether that's necessarily the case. You suggest that the claim at issue here really is about what Cisco did --
“The Justice is intellectually exploring a tension in the government's argument, building on a prior exchange and thinking through whether aiding-and-abetting liability necessarily raises the same foreign-cubed concerns. The phrasing 'I've been puzzling over that' and 'I guess what I'm wondering' signals genuine intellectual engagement and probing curiosity rather than hostility or strong skepticism.”
-- about Cisco's acts here in the United States with the creation of this software and the extent to which it did so under China's direction and to facilitate whatever it was that China was doing. So I suppose you could have a world in which Cisco even concedes for the purpose of litigation that those things happened in China and the whole litigation is really just about its own participation. And in that case, would it raise the foreign policy concerns that the United States is talking about?
“The Justice is constructing a hypothetical scenario to intellectually explore whether limiting the litigation to Cisco's domestic conduct (rather than China's actions) would neutralize the foreign policy concerns raised by the government. This reflects engaged exploration of the case's parameters with some concern about foreign policy implications.”
We don't think so. And 116 we also think that aiding and abetting as a concept doesn't necessarily implicate foreign policy at all. And, for example, say the Iranian regime is overthrown and it turns out that an American company helped the Iranian regime identify protestors so that they could be executed summarily, and the -- and the -- the parents of those teenagers that were executed come to this country and say that that corporation killed our -- helped kill our children. Would we really say that they don't have a claim here because of foreign policy? There's no foreign policy implication. It's completely consistent with U.S. policy. And, in fact, in this case, the United States Government has condemned all the things that we have said about what the Chinese government does to the Falun Gong, every single one of them.
Thank you, counsel. Justice Thomas?
“This is a purely procedural statement with no emotional valence, simply thanking counsel and passing the floor to Justice Thomas for questioning.”
When we had Central Bank appear, the point -- of course, that is a securities case, but it makes the point that there was no general background common law rule as to aiding and abetting -- aiding and abetting in tort cases. If that is the case, how does that affect aiding and abetting in 1789 on the three categories that we indicated in Sosa?
“The Justice is probing how the Central Bank precedent (which found no general common law rule on aiding and abetting) affects the respondent's aiding and abetting argument under the Alien Tort Statute's 1789 framework established in Sosa. This reflects both intellectual engagement with legal history and skepticism about whether aiding and abetting liability can be grounded in 1789 common law.”
Well, the -- the -- what I would say to that is that as your decision in Twitter laid out in terms of the long history of aiding and abetting in criminal -- the criminal context, there's an equally long history of accessorial liability and aiding-and-abetting liability in the context of the law of nations, which, from our standpoint, in terms of enforcing this statute is different from anything that existed in terms of civil aiding-and-abetting liability. What we're saying is that Congress said that we could have a tort action if we had a violation of the law of nations. Aiding and abetting, torture, and extrajudicial killing and disappearance under customary international 118 law -- and I don't think it's disputed by the other side that -- that it is a violation -- fits what Congress said we could get and that Sosa said that unless there's some reason that we shouldn't be able to go forward, we have that claim. And I -- and I was saying that there's no -- there's no categorical reason why this aiding-and-abetting claim which focuses on U.S. citizens acting from U.S. territory raises the kind of issues that this Court recognized in Jesner based on a long history of protests and -- and the fact that the cases didn't have much to do with the United States.
So we have to actually go beyond the common law itself?
“The question challenges whether the argument requires going beyond established common law, suggesting some skepticism about overreaching the traditional legal framework. However, it also has a clarifying dimension as the Justice may genuinely be seeking to confirm the scope of the respondent's position.”
Well, no. I -- I mean, the law of nations was part of the common law. That was the understanding at the time. That's probably part of why, you know, the -- the -- the Alien Tort Statute was passed the way it was. The -- the law of nations was understood to be part of the common law that we inherited from England. And -- and -- and you 119 have cases from the beginning of the republic throughout the Paquete Habana and, you know, dealing with the capture of fishing vessels during a war, saying that courts had the responsibility to identify and apply the law of nations. Even in 1900, the courts were saying that. And the Court has consistently said over time that the law of nations and -- and also customary international law is part of our law to be applied. Now that can be over -- Congress can withdraw this authority as it was interpreted by this Court anytime it wants. If Congress thinks that the -- the -- the concerns that have been raised by the Chamber and other amici and -- and by the United States is problematic, Congress can do away with it and just say no, you know, we -- we're -- we're out of that business. But they never said it. And, in fact, the only time Congress has said anything is they've said we really like Filartiga. We really think that's a good precedent. They say it in the Senate report for paragraphs. And -- and -- and that -- and so, in terms of what 120 Congress has decided in terms of the tradeoff, I think both in -- in 1789, when it was even more fraught, and today, what these statutes mean is that we do have a commitment to enforcing international law at least in some limited extent.
Wouldn't it actually work better the other way, if Congress actually added aiding and abetting?
“The question probes the logical structure of the respondent's argument by suggesting an alternative framing ('the other way'), indicating intellectual engagement and mild skepticism. The 'Wouldn't it actually work better' phrasing implies the Justice may be testing whether the respondent's position is weaker than an alternative construction, blending skeptical probing with exploratory engagement.”
It would certainly mean that we wouldn't have to debate that issue anymore. (Laughter.)
But -- but I don't think they have to. And I guess our point about Central Bank, at -- at -- at least as it applies to the TVPA, I mean, I don't know how you'd apply Central Bank to a 17 -- to the first statute that the Congress ever passed in terms of implying what they thought about it, but, for the TVPA, our point is that Central Bank doesn't say that you have to use magic words or that you have to use that word. What you have to find out is what did Congress intend. Congress said that it 121 intended for people who aided and abetted or at least abetted and assisted to be liable under the statute. And it -- and it was enforcing international law, which also applied to aiding -- aiders and abetters.
Thank you. Justice Alito, anything further? Justice Sotomayor? Justice Kagan? Justice Gorsuch? Justice Kavanaugh? Justice Barrett? Justice Jackson? Thank you, counsel.
“This is purely procedural language — the Chief Justice polling colleagues for additional questions and thanking counsel at the conclusion of argument. It carries no emotional valence whatsoever.”
Rebuttal, Mr. Shanmugam? REBUTTAL ARGUMENT OF KANNON K. SHANMUGAM ON BEHALF OF THE PETITIONERS
“This is a purely procedural statement inviting rebuttal argument, with no emotional valence or substantive legal content. It is a standard administrative transition in oral argument proceedings.”
Thank you, Mr. Chief Justice. Judge Friendly famously described the ATS as a legal Lohengrin, and in Sosa, the Court recognized that the ATS was jurisdictional but that Congress didn't intend 122 it to be stillborn and hence, it created a cause of action for the norms that the First Congress expected to be recognized. But, over Justice Scalia's objection, the Court then went further. It went on to permit judicial law-making, the recognition of new causes of action as a matter of federal common law for violations of modern international law. And it's that methodology that we believe is invalid and that the Court should now reject, and that is because, far from engaging in strict judicial door-keeping, the lower courts have uncritically recognized a wide range of claims to be actionable, including aiding-and-abetting claims, often over the objections of foreign governments, as we discuss at page 35 of our brief. And even in the wake of this Court's most recent decisions, the plaintiffs' bar has been adept at taking extra -- extraterritorial allegations against American companies and repackaging them as allegations concerning aiding-and-abetting conduct that took place in the United States. 123 That methodology has proven to be unworkable, and, as this Court did in Edwards versus Vannoy and Loper Bright, when confronted with similarly unworkable methodologies, this Court should now reject it. But, even if the Court doesn't go that far, it should still reverse. We take the point that the aiding-and-abetting analysis should occur on a norm-by-norm basis at least at the first step of Sosa. But any aiding-and-abetting claim, apart from the three core offenses, will ultimately still fail. And that is regardless of whether you conceive of aiding and abetting as a discrete cause of action or merely a question concerning the scope of the cause of action. If it is the former, we believe that the recognition of a cause of action regardless of the norm will fail at step 2 of Sosa for the reasons given by Judge Christen in her dissent below, the foreign policy concerns that we've discussed today. But, if you think it's a question concerning the scope of the cause of action, 124 then you have to look to principles of domestic law. That is the teaching of Kiobel in particular, and I think that is also the teaching of Justice Sotomayor's dissent in Jesner. And if you're looking to domestic law, the place to look is Central Bank and not just to Central Bank as a rule of interpretation, but, as Justice Thomas said, as resting on a fundamental premise, namely, that aiding-and-abetting liability was not available at the common law. In the words of the D.C. Circuit in the Halberstam case, the common law largely confined aiding-and-abetting liability to isolated acts of adolescents in rural society. There was certainly no broad norm to that effect. Obviously, Cisco vigorously disputes the allegations in this particular case. It complied with all applicable United States laws, particularly with regard to the provision of technology to China. But we're here on a motion to dismiss. This is ultimately a legal question. And Congress can, in this context, 125 as in others, create a cause of action if it wishes --
Thank you, counsel. The case is submitted. (Whereupon, at 12:02 p.m., the case was submitted.)
“This is a purely procedural, administrative closing statement marking the end of oral argument. It contains no emotional valence, questioning, or evaluative content whatsoever.”