The Court was hearing oral argument in Kiobel v. Royal Dutch Petroleum, which was brought under a founding-era law, commonly called the Alien Tort Statute, that allows foreign nationals to bring civil lawsuits in U.S. federal courts "for a tort only, committed in violation of the law of nations or a treaty of the United States." The 12 Nigerian plaintiffs contend that Shell Oil's parent company aided and abetted the Nigerian government in its torture and extrajudicial killing of environmental and human rights protesters resisting Shell's operations in Nigeria in the 1990s.
The Alien Tort Statute says nothing about what types of defendants -- corporate, individual, state -- may be sued. In the past year, the four appeals courts to take on the issue of corporate liability have divided 3-to-1 in favor of those bringing the lawsuits. But Tuesday's oral argument reinforced the relevancy of another aspect of all these decisions: their partisan nature. Save one defection from each side, every Democrat-appointed judge held for corporate liability, and every Republican appointee found for corporate immunity.