Opinions – The Calm Before the Storm

The Supreme Court is expected to issue opinions on Monday morning, May 14. Virtually all of the major cases argued this Term, even some from October, are yet to be decided, and the Court is off to its slowest start in many years, so Monday could be a bit of a blockbuster.

But as we wait for the latest opinions, let’s look back at the Court’s three most recent opinions — all issued during the week of April 2. The most politically charged of those opinions was Jesner v. Arab Bank, in which, by a 5-4 vote, the Court held that foreign corporations may not be defendants in suits brought under the ATS. Justice Kennedy delivered the opinion, joined in part by Chief Justice Roberts, Thomas, Alito, and Gorsuch. (Justice Thomas also filed a concurring opinion, andJustices Alito and Gorsuch filed opinions concurring in part and concurring in the judgment.)J ustice Sotomayor filed a 34-page dissent, joined by Justices Breyer, Kagan, and Ginsburg.

The ATS is a provision of the Judiciary Act of 1789 that grants district courts original jurisdiction over “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.” Under the ATS, the petitioners, foreign nationals injured or killed by terrorist attacks between 1995 and 2005 in Israel, the West Bank, and Gaza, brought suit against Arab Bank, PLC, a foreign corporation that allegedly facilitated the acts of terrorism that caused their injuries. The United States District Court of the Eastern District of New York dismissed their claims after the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum Co., which held that foreign corporations could not be sued under the ATS (the Court affirmed the holding in Kiobel, but on the grounds that claims cannot normally be brought pursuant to the ATS when all conduct relevant to the suit took place outside of the United States). The Second Circuit affirmed the dismissal, which the petitioners appealed, and the Supreme Court affirmed.

The five-justice majority emphasized that Congress enacted the ATS to “promote harmony in international relations by ensuring foreign plaintiffs a remedy for international law violations”, in order to discourage litigation against the United States. This case, the Court emphasized, does the opposite. “At a minimum, the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States well illustrates the perils of extending the scope of ATS liability to foreign national corporations like Arab Bank,” stated Kennedy in the opinion. “For 13 years, this litigation has ‘caused significant diplomatic tensions’ with Jordan, a critical ally in one of the world’s most sensitive regions.”

The dissent argued that, by “categorically foreclosing foreign corporate liability” under the ATS, the Court is “[absolving] corporations from responsibility under the ATS for conscience-shocking behavior.” Analogizing to Citizens United v. SEC, Justice Sotomayor concluded that by shielding corporations from liability under the ATS, the Court “allows these entities to take advantage of the significant benefits of the corporate form and enjoy fundamental rights, without having to shoulder attendant fundamental responsibilities.”

While Joan Biskupic at CNN, writes that Jesner is evidence of increasing tension between the liberal and conservative blocs on the Court, Walter Olson, at the Cato Institute, argues that the decision “[confirms] that is it up to Congress, not the judiciary, to decide whether and when American courts should entertain international human rights cases against foreign defendants.”

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC , one of the most highly-anticipated intellectual property opinions of the Term, was written by Justice Thomas. The only dissenters were Justice Gorsuch, who wrote an opinion, and Chief Justice Roberts, who joined him. This case was about inter partes review – an administrative process that allows the Patent and Trade Office (“PTO”) to reconsider and cancel patents that were (allegedly) improperly issued because they fail the novelty or nonobviousness standards. The Court upheld this procedure against claims that it violates Article III or the Seventh Amendment jury right., holding that Congress had properly delegated inter partes review to the PTO, and that “the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” In the related case of SAS Institute, Inc. v. Iancu, the Court held, 5-4, that when it undertakes inter partes review, the PTO must consider all of the challenges raised to the patent.

Adam Liptak of The New York Times writes that supporters of inter partes review see it as a way to combat “patent trolls” – companies that obtain patents and then, rather than use the patents, demand royalties and sue for damages. Critics of the decision have said that the Court is undermining the stability and effectiveness of patents as property rights that form the foundation of the U.S. innovation economy. And Joe Nocera explored the views of different industries in Bloomberg, painting a picture of tech companies on one side (supporting inter partes review because of how often patents are challenged in court) against drug companies on the other side (criticizing inter partes review because it cuts down on their ability to build “patent fortresses” around a branded drug to maintain that drug’s profitability). In addition, Nocera writes that patent examiners may not be getting it right the first time because the Patent and Trademark Office is entirely overwhelmed with patent applications –receiving upwards of 640,000 applications each year, with only around 8,000 patent examiners.

ISCOTUS Fellows Elisabeth Hieber, Chicago-Kent Class of 2019, and Eva Dickey, Chicago-Kent Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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