Background
Plaintiffs, practitioners of Falun Gong, alleged that the Chinese Government persecuted them for their religious beliefs and that Cisco Systems, Inc. facilitated that persecution by developing surveillance technology that enabled Chinese authorities to identify and apprehend them. Plaintiffs brought suit under the Alien Tort Statute (ATS), 28 U.S.C. §1350, claiming Cisco and its executives aided and abetted violations of international law — including torture, forced labor, arbitrary detention, crimes against humanity, and extrajudicial killing. One plaintiff additionally sought to hold two Cisco executives liable under the Torture Victim Protection Act of 1991 (TVPA) for aiding and abetting torture.
The ATS grants federal district courts jurisdiction over civil actions by aliens for torts committed in violation of the law of nations or a U.S. treaty. After lying mostly dormant for nearly two centuries, the statute was revived in 1980 by the Second Circuit’s decision in Filartiga v. Pena-Irala. In 2004, the Supreme Court addressed the ATS in Sosa v. Alvarez-Machain, holding it is a jurisdictional statute that creates no new causes of action but allowing — narrowly — for judicially created rights of action to enforce well-established international norms. Despite that opening, the Court had never actually created an ATS cause of action in the two decades since Sosa.
The Northern District of California dismissed plaintiffs’ complaint, but the Ninth Circuit reversed in relevant part, holding that aiding-and-abetting liability is sufficiently definite and universal to be viable under the ATS, that no prudential reasons barred its recognition, and that the TVPA encompasses aiding-and-abetting claims. The Supreme Court granted certiorari to resolve both questions.
The Court’s Holding
In a 6-3 opinion authored by Justice Barrett, the Court reversed the Ninth Circuit on both issues. On the ATS question, the Court held that federal courts may not create new causes of action for violations of international norms. The majority reasoned that two forces together compel this result: the inherent foreign-policy entanglement in every ATS case makes it virtually impossible for a court to “safely conclude” that a new cause of action would not produce detrimental diplomatic consequences; and the power to create causes of action belongs to Congress, which has express constitutional authority to “define and punish Offences against the Law of Nations.” U.S. Const. art. I, §8, cl. 10. Post-Sosa separation-of-powers precedent — particularly Egbert v. Boule and Ziglar v. Abbasi — has sharpened these constraints to the point that even a single sound reason to defer to Congress forecloses judicial action, and such a reason will always exist in ATS litigation. The existence of the TVPA as an alternative remedial structure independently bars any additional judicial cause of action.
The Court formally closed the door Sosa had left ajar, characterizing Sosa‘s prediction that courts might sometimes create ATS actions without intruding on the political branches as “overly optimistic” — and the class of permissible judicial ATS actions as “a null set.” The Court left undisturbed Sosa‘s holding that the ATS is jurisdictional, and it did not revisit the availability of actions for the three Blackstone-era torts (piracy, violation of safe conducts, and infringement of ambassadorial rights). On the TVPA question, the Court held separately that the Act’s cause of action against one who “subjects” another to torture does not encompass aiding-and-abetting liability. Following Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., the Court held that Congress’s silence on aiding and abetting — a term Congress knows how to use expressly — is dispositive, and that the word “subjects” denotes a direct causal connection that aiding-and-abetting liability does not require.
Justices Jackson and Kagan concurred in part and dissented in part, and Justice Sotomayor filed a dissent joined by Justices Kagan and Jackson as to most parts, arguing that the majority misread Sosa, unnecessarily foreclosed human rights litigation, and improperly stripped courts of a tool that can advance U.S. foreign policy interests.
Key Takeaways
- Federal courts no longer have authority to create new causes of action under the ATS for violations of international law norms — the narrow judicial lawmaking role Sosa acknowledged is now formally closed.
- Because courts cannot create primary ATS liability, aiding-and-abetting liability under the ATS is also categorically unavailable, regardless of whether the underlying norm is well-established.
- The TVPA does not provide a cause of action for aiding and abetting torture; Congress must expressly authorize that theory of liability, and its silence is dispositive under Central Bank.
- The Court preserved Sosa‘s characterization of the ATS as jurisdictional and did not disturb the historic availability of claims tracking Blackstone’s three recognized law-of-nations offenses (piracy, safe-conduct violations, and attacks on ambassadors).
- The existence of the TVPA as an alternative remedial structure is an independent and sufficient reason for courts to refrain from crafting new ATS liability.
Why It Matters
This decision effectively ends human rights litigation in U.S. federal courts against corporations and individuals alleged to have assisted foreign governments in committing atrocities. Since the early 1980s, the ATS had served as a significant vehicle for foreign victims of torture, extrajudicial killing, and other grave abuses to seek redress in American courts. By declaring the class of permissible judicially created ATS actions a “null set,” the Court removes that avenue entirely for any conduct not already covered by the Blackstone three, and its TVPA holding simultaneously forecloses the next most obvious statutory route for those who facilitate rather than directly commit such acts.
For practitioners, the ruling signals a broader judicial retrenchment: the Court’s separation-of-powers framework now treats any judicially created damages remedy with deep skepticism, and the combination of foreign-policy concerns with a pre-existing statutory scheme (like the TVPA) will almost always be enough to block new judicial action. Plaintiffs alleging corporate complicity in international human rights abuses will need to look to Congress for new legislation or to other forums — domestic or international — for relief.