Sometimes, it takes the Supreme Court a little while to get to the heart of a case being argued before it, but it does catch on more quickly if there are really talented lawyers taking turns at the lectern. That happened on Wednesday when the Court was led by three skilled advocates toward a firmer grasp on when to hold rogue foreign governments accountable by opening them to being sued in US. courts, and how to do that without too greatly exposing the U.S. to retaliation in overseas courts.
What started out as, and sometimes seemed likely to be obscured by, an arcane inquiry into the fine detail of court jurisdiction turned later into almost a foreign relations management seminar, exploring the folly or the wisdom of haling a sovereign nation before the bar of a U.S. court.
The case before the Court grew out of the seizure of Venezuela’s private oil industry by that nation’s government six years ago. In Republic of Venezuela v. Helmerich & Payne International Drilling Co., the Court is exploring the question of how easy – or how difficult – it should be to sue Venezuela in an American court for taking over the rigs and the business in that country of an Oklahoma-based drilling company.
That is a question of what Congress had in mind when, in generally giving foreign governments immunity to being sued in the U.S., it made an exception to allow lawsuits challenging a government’s nationalization (technically, “expropriation”) of private property.
In this case, the lower federal courts applied what they conceded was an “exceptionally low bar” for a lawsuit of that kind to go ahead in court. Under that test, such a case is allowed unless the trial judge concluded that the claim of illegal expropriation under international law was “wholly insubstantial or frivolous.”
Venezuela’s lawyer in the Court on Wednesday, Washington, D.C., attorney Catherine E. Stetson contended that such an easy-to-satisfy test should have no place in lawsuits involving the sovereign governments of the world. Unless a judge, at the very outset of a case, can decide on the weight of the claim of illegality, by finding that a right did exist under international law and that the right probably had been violated, the case should be thrown out for lack of jurisdiction, she contended.
Predictably, that front-end-loading argument initially disturbed most of the Justices, mainly because the Court in recent years has been quite skeptical of the idea that issues that go to the merits – the right and the wrong in a legal dispute – should be treated as questions of court jurisdiction (that is, a question of whether the court even has the authority to act.)
Although Stetson was speaking for a country in the context of an act roundly condemned in the international community (grabbing private property), she was careful to enlarge the class of governments affected to all that deserve the dignity and comity of being treated as sovereigns.
That approach also got sturdy support from a lawyer for the federal government, Elaine E. Goldenberg, an assistant to the Solicitor General. It was her task to raise the specter of retaliation by foreign governments if they felt too easily hauled into American courts to defend themselves.
It can be a “real affront” to one nation to have its actions judged by another, Goldenberg said, adding that that is especially true when the claim against the foreign nation is that it has wrongly seized private property as a matter of internal policy. That is why, she said, echoing Stetson’s plea, that the question of illegality has to be decide at the very outset of a lawsuit against a foreign government, to determine if the U.S. court can go ahead with the case.
Over the course of the hearing, several of the Justices appeared to begin to sense that maybe it does make a difference when, in a trial of such a case, the immunity question gets resolved.
For example, Chief Justice John G. Roberts, Jr., had started out by wondering why it would make any difference whether immunity issues were decided early or later in a trial, but by the latter part of the hearing, he was talking about the problem of foreign government retaliation.
Roberts imagined the awkward scene of a U.S. ambassador telling another nation that, even though it was sovereign, it was being sued in a U.S. court for a claim that barely passed the test of not being frivolous, and yet the U.S. doesn’t want “you dragging us into your courts.”
In short, the quality of the advocacy of Stetson and Goldenberg was beginning to have a positive effect for them on the Court.
But that was not the end of the hearing, and the lawyer for the company suing over the seizure of its oil rigs in Venezuela clearly made this is a close legal contest. Washington attorney Catherine M.A. Carroll came armed with an impressive array of arguments that the Court should not be fashioning a special jurisdictional rule just for property-seizure lawsuits against foreign nations.
A court, she conceded, should decide at the very outset of such a case whether or not there exists an exception to the foreign government’s normal sovereign immunity. But that, she said, was not what was at issue. Rather, she argued, the key question is what test should be applied to determine that.
In all other contexts, she said, the pleading standard for when a case can go forward is that it have some substance to it, and that it was not wholly frivolous. That works perfectly well in other contexts, she contended.
When she asked, rhetorically, why it should be necessary to carve out a threshold test of a lawsuit’s viability for just one kind of lawsuit, Justice Anthony M. Kennedy said the answer was “because there’s extreme sensitivity with reference to foreign sovereigns.”
Unfazed, Carroll said she appreciated that, but then turned the point around to favor her argument by wondering why the Court would want to have a method in which the dignity of a foreign government was to label it as a “violator of international law” before it ever had a chance to put forth its legal defenses to such a claim.
It was not clear whether Carroll had succeeded in undoing the sympathy that the other two lawyers had generated for their side of the case, but the quality of her presentation on the complications of starting out with a fresh new legal standard for foreign expropriation cases made the task of the Justices a good deal more challenging.