Chief Justice John Roberts Jr. won. In Kiobel v. Royal Dutch Petroleum, he took an issue so hot that 82 amicus groups weighed in, and rendered a ruling so tepid that the story ran on page A22 of The New York Times. Had the U.S. Supreme Court barred human rights liability for corporations, a snarky front-pager might have noted the contrast to Citizens United: A corporation has the right to buy elections because it’s a person, yet may commit genocide with impunity because it’s not a person.
But that’s not what happened. Rather than kill the corporate alien tort outright, the court maimed all forms of alien tort by restricting their territorial reach. The corporate alien tort is therefore doomed to remain a zombie doctrine not quite alive and not quite dead. The upshot is that federal courts may only hear alien tort suits where the "claims touch and concern the territory of the United States…with sufficient force." What this means in practice will be litigated in many fact scenarios. Concurring justices Samuel Alito and Clarence Thomas say it requires domestic conduct violating fundamental human rights and, indeed, this is the most natural application of the court’s holding on extraterritoriality in Morrison v. National Australia Bank. Justice Anthony Kennedy stressed in his concurrence that the vague test adopted will allow wiggle room in the future.
