SCOTUS Appears Poised To Say ‘Corporations Are People, Except When They Torture’
The case involves whether Royal Dutch Shell can be held accountable in American courts for allegedly working with the Nigerian government to torture, execute and detain members of an ethnic group under a law holding the most atrocious human rights violators accountable to international norms. To be clear, there are some legitimate reasons why the Supreme Court should be wary of this case — Shell is a foreign corporation, and its alleged actions occurred on foreign soil, so it is not entirely certain that American courts can reach Shell’s actions. There are worrying signs, however, that the Court’s conservatives are prepared to simply declare all corporations, both foreign and domestic, immune from international legal norms. Most notably, the Court’s supposed swing vote, Justice Anthony Kennedy, asked several questions suggesting that he does not believe corporations can be held accountable to this law:
- “[C]ounsel, for me, the case turns in large part on this: page 17 of the red brief. It says, “‘International law does not recognize corporate responsibility for the alleged offenses here.’”
- “[I]n the area of international criminal law, which is just analogous, I recognize, there is a distinction made between individuals and corporations.”
- Suppose an American corporation commits human trafficking with U.S. citizens in the United States.Under your view, the U.S. corporation could be sued in any country in the world, and it would — and that would have no international consequences. We don’t look to the international consequences at all. That’s — that’s the view of the Government of the United States, as I understand.
If Justice Kennedy is willing to go this far, there’s a good chance that his four even more conservative colleagues are willing to come along with him. Worse, his questions yesterday suggest that the Court is prepared to apply a baffling double standard to wealthy and powerful corporations. Kennedy, of course, was the author of Citizens United, which declared that corporations have the exact same rights as actual human beingsfor purposes of spending money to influence elections. Yet, when a corporation engages in mass atrocities, they are suddenly entitled to legal immunities far beyond those available to people.
In other words, corporations are people, my friend — except when they torture.