Yesterday, I reported on Ted Olson’s speech to the Federalist Society about the recently completed Supreme Court term. Olson devoted considerable attention to a decision that I don’t think we have discussed at Power Line (although we have addressed the evil the decision will promote). That case is Sosa v. Alvarez-Machain, in which the Drug Enforcement Administration approved using Mexican nationals to abduct another Mexican national (Alvarez) from Mexico to stand trial in the United States for a DEA agent’s torture and murder. After his acquittal, Alvarez sued the United States for false arrest under the Federal Tort Claims Act and his Mexican abductors under the Alien Tort Statute.
The Supreme Court, by a unanimous vote, reversed the liberal Ninth Circuit Court of Appeals and held that Alvarez could not obtain damages in these actions. However, in an opinion by Justice Souter, the Court found that the federal judiciary has the discretionary power to create causes of action for the enforcement of international law-based norms. Justice Scalia (joined only by Thomas and Rehnquist) dissented from that portion of the opinion, stating that “the judicial lawmaking role it invites would commit the Federal Judiciary to a task it is neither authorized nor suited to perform.” Scalia warned that “in
holding open the possibility that judges may create rights where Congress has not authorized them to do so, the Court countenances judicial occupation of a domain that belongs to the people’s representatives.” Picking a not-so-random example, Scalia pointed out that the American peoples’ democratic adoption of the death penalty, as in Texas, could be judicially nullified because of the disapproving views of foreigners.
Olson concluded his remarks to the Federalist Society by quoting from the conclusion of Scalia’s dissent in Sosa. These words should be taken to heart by every American, who unlike six of our Supreme Court Justices, has a decent regard for the democratic process:
“We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today’s opinion approves that process in principle, though urging the lower courts to be more restrained.
“This Court seems incapable of admitting that some matters — any matters — are none of its business. In today’s latest victory for its Never Say Never Jurisprudence, the Court. . .wags a finger at the lower courts for going too far, and then — repeating the same formula the ambitious lower courts themselves have used — invites them to try again.
“It would be bad enough if there were some assurance that future conversions of perceived international norms into American law would be approved by this Court itself. (Though we know ourselves to be eminently reasonable, self-awareness of eminent reasonableness is not really a substitute for democratic
election.) But in this illegitimate lawmaking endeavor, the lower federal courts will be the principal actors; we review but a tinyfraction of their decisions. And no one thinks that all of them are eminently reasonable.
“American law — the law made by the people’s democratically elected representatives — does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal court. That simple principle is what today’s decision should have announced.”
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