Nestlé USA, Inc. v. Doe

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 628–658
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 17, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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628 OCTOBER
TERM, 2020
Syllabus
NESTLE USA, INC. v. DOE et al.
certiorari
to the united states court of appeals for
the ninth circuit
No. 19–416. Argued December 1, 2020—Decided June 17, 2021*
Respondents are six individuals from Mali who allege that they were traf-
fcked into Ivory Coast as child slaves to produce cocoa. U. S.-based
companies Nestlé USA, Inc., and Cargill, Inc., do not own or operate
cocoa farms in Ivory Coast, but they do buy cocoa from farms located
there and provide those farms with technical and fnancial resources.
Respondents sued Nestlé, Cargill, and others under the Alien Tort Stat-
ute (ATS)—which provides federal courts jurisdiction to hear claims
brought “by an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States,” 28 U. S. C. § 1350—contending
that this arrangement aids and abets child slavery. Because respond-
ents' injuries occurred overseas and the only domestic conduct alleged
by respondents was general corporate activity, the District Court dis-
missed the suit as an impermissible extraterritorial application of the
ATS under Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108. The
Ninth Circuit held, as relevant, that respondents had pleaded a domestic
application of the ATS, as required by Kiobel, because the corporations'
major operational decisions originated in the United States.
Held: The judgment is reversed, and the case is remanded.
929 F. 3d. 623, reversed and remanded.
Justice Thomas delivered the opinion of the Court with respect to
Parts I and II, concluding that respondents here improperly seek extra-
territorial application of the ATS. The Court's two-step framework for
analyzing extraterritoriality issues frst presumes that a statute applies
only domestically and asks “whether the statute gives a clear, affrma-
tive indication” that rebuts the presumption. RJR Nabisco, Inc. v. Eu-
ropean Community, 579 U. S. 325, 337. As the Court has already held,
the ATS does not rebut the presumption of domestic application. Kio-
bel, 569 U. S., at 124. In fact, the ATS does not expressly “regulate
conduct” at all, much less “evince a `clear indication of extraterritorial-
ity.' ” Id., at 115–118. Second, where the statute, as here, does not
apply extraterritorially, plaintiffs must establish that “the conduct rele-
*Together with No. 19–453, Cargill, Inc. v. Doe et al., also on certiorari
to the same court.

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629
Syllabus
vant to the statute's focus occurred in the United States . . . even if
other
conduct occurred abroad.” RJR Nabisco, 579 U. S., at 337.
The parties dispute what conduct is relevant to the “focus” of the
ATS, but even if this dispute were resolved in respondents' favor,
their complaint would impermissibly seek extraterritorial application
of the ATS. Nearly all the conduct they allege aided and abetted
forced labor—providing training, equipment, and cash to overseas
farmers—occurred in Ivory Coast. Pleading general corporate activ-
ity, like “mere corporate presence,” Kiobel, 569 U. S., at 125, does not
draw a suffcient connection between the cause of action respondents
seek and domestic conduct. To plead facts suffcient to support a do-
mestic application of the ATS, plaintiffs must allege more domestic con-
duct than general corporate activity common to most corporations.
Pp. 632–634.
Thomas, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I and II, in which Roberts,
C. J., and Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and
Barrett, JJ., joined, and an opinion with respect to Part III, in which
Gorsuch and Kavanaugh, JJ., joined. Gorsuch, J., fled a concurring
opinion, in which Alito, J., joined as to Part I, and in which Kavanaugh,
J., joined as to Part II, post, p. 640. Sotomayor, J., fled an opinion con-
curring in part and concurring in the judgment, in which Breyer and
Kagan, JJ., joined, post, p. 646. Alito, J., fled a dissenting opinion, post,
p. 657.
Neal Kumar Katyal argued the cause for petitioners in
both cases. With him on the briefs for petitioner in No. 19–
416 were Craig A. Hoover, Sean Marotta, Benjamin A.
Field, Theodore J. Boutrous, Jr., and Perlette Michèle Jura.
Andrew J. Pincus fled briefs in both cases for petitioner in
No. 19–453. With him on the briefs were Kevin S. Ranlett
and Cleland B. Welton II.
Deputy Solicitor General Gannon argued the cause for
the United States as amicus curiae urging reversal in both
cases. With him on the brief were Acting Solicitor General
Wall, Acting Assistant Attorney General Clark, Hashim M.
Mooppan, Austin L. Raynor, Melissa N. Patterson, Dana L.
Kaersvang, and Joshua M. Koppel.

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USA, INC. v. DOE
Opinion of the Court
Paul L. Hoffman argued the cause for respondents in both
cases.
With him on the brief in both cases were Terrence
P. Collingsworth and Erwin Chemerinsky.*
Justice Thomas announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts
I and II, and an opinion with respect to Part III, in which
Justice Gorsuch and Justice Kavanaugh join.
The Alien Tort Statute (ATS) gives federal courts jurisdic-
tion to hear certain civil actions fled by aliens. 28 U. S. C.
*Briefs of amici curiae urging reversal in both cases were fled for the
Cato Institute by Owen C. Pell, Claire A. DeLelle, Catherine S. Simonsen,
and Ilya Shapiro; for the Chamber of Commerce of the United States of
America et al. by John P. Elwood, John B. Bellinger III, R. Reeves Ander-
son, and Patrick Hedren; for The Coca-Cola Co. by Pratik A. Shah and
James E. Tysse; for Professors of International Law et al. by Samuel
Estreicher, Vincent Levy, and Daniel M. Sullivan; for the Washington
Legal Foundation et al. by Cory L. Andrews and Corbin K. Barthold; and
for the World Cocoa Foundation et al. by Kevin P. Martin, William M.
Jay, and Andrew Kim.
Briefs of amici curiae urging affrmance in both cases were fled for the
Center for Global Justice by Jeffrey A. Brauch, James J. Duane, W. Mark
Lanier, Kenneth W. Starr, and Kevin P. Parker; for the Center for Jus-
tice & Accountability et al. by Carmen K. Cheung; for the Constitutional
Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod, and
David H. Gans; for Foreign Lawyers by William J. Aceves and Tanya
Sukhija-Cohen; for the Grant & Eisenhofer ESG Institute by Jay W. Eis-
enhofer; for International Human Rights Organizations by Katherine Gal-
lagher; for International Law Scholars by William S. Dodge; for Oxfam
America et al. by Michael D. Hausfeld; for Professors of Legal History by
Tyler R. Giannini; for Small and Mid-size Cocoa and Chocolate Companies
by Charity Ryerson; for Tony's Chocolonely by Charity Ryerson; and for
the Yale Law School Center for Global Legal Challenges by Oona A.
Hathaway.
Briefs of amici curiae were fled in both cases for Access Now et al. by
Sophia Cope and Cindy Cohn; for Earthrights International by Richard
L. Herz, Marco B. Simons, and Michelle C. Harrison; for Former Govern-
ment Offcials by Harold Hongju Koh, Hope R. Metcal f, and Phillip Spec-
tor; for International Law Scholars et al. by Beth Van Schaack; for Nur-
emberg Scholars by Jennifer Green; and for Sen. Richard Blumenthal
et al. by Agnieszka M. Fryszman and Martina E. Vandenberg.

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Opinion of the Court
§ 1350. Although this jurisdictional statute does not create
a
cause of action, our precedents have stated that courts may
exercise common-law authority under this statute to create
private rights of action in very limited circumstances. See,
e. g., Sosa v. Alvarez-Machain, 542 U. S. 692, 724 (2004); Her-
nández v. Mesa, 589 U. S. –––, –––, ––– (2020). Respondents
here seek a judicially created cause of action to recover dam-
ages from American corporations that allegedly aided and
abetted slavery abroad. Although respondents' injuries oc-
curred entirely overseas, the Ninth Circuit held that re-
spondents could sue in federal court because the defendant
corporations allegedly made “major operational decisions” in
the United States. The Ninth Circuit erred by allowing this
suit to proceed.
I
According to the operative complaint, Ivory Coast —a
West-Afr ican country a lso known as Côte d'Ivoire —is
responsible for the majority of the global cocoa supply. Re-
spondents are six individuals from Mali who allege that they
were traffcked into Ivory Coast as child slaves to produce
cocoa.
Petitioners Nestlé USA and Cargill are U. S.-based compa-
nies that purchase, process, and sell cocoa. They did not
own or operate farms in Ivory Coast. But they did buy
cocoa from farms located there. They also provided those
farms with technical and fnancial resources—such as train-
ing, fertilizer, tools, and cash—in exchange for the exclusive
right to purchase cocoa. Respondents allege that they were
enslaved on some of those farms.
Respondents sued Nestlé, Cargill, and other entities, con-
tending that this arrangement aided and abetted child slav-
ery. Respondents argue that petitioners “knew or should
have known” that the farms were exploiting enslaved chil-
dren yet continued to provide those farms with resources.
App. 319. They further contend that petitioners had eco-
nomic leverage over the farms but failed to exercise it to
eliminate child slavery. And although the resource distribu-
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632 NESTLE
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Opinion of the Court
tion and respondents' injuries occurred outside the United
St
ates, respondents contend that they can sue in federal
court because petitioners allegedly made all major opera-
tional decisions from within the United States.
The District Court dismissed this suit after we held that
the ATS does not apply extraterritorially. Kiobel v. Royal
Dutch Petroleum Co., 569 U. S. 108 (2013). It reasoned that
respondents sought to apply the ATS extraterritorially
because the only domestic conduct alleged was general cor-
porate activity. While this suit was on appeal, we held that
courts cannot create new causes of action against foreign
corporations under the ATS. Jesner v. Arab Bank, PLC,
584 U. S. 241 (2018). The Ninth Circuit then reversed the
District Court in part. Although the Ninth Circuit deter-
mined that Jesner compelled dismissal of all foreign corpo-
rate defendants, it concluded that the opinion did not fore-
close judicial creation of causes of action against domestic
corporations. The Ninth Circuit also held that respondents
had pleaded a domestic application of the ATS, as required
by Kiobel, because the “fnancing decisions . . . originated”
in the United States. Doe v. Nestlé, S. A., 906 F. 3d 1120,
1124–1126 (2018); see also 929 F. 3d 623 (2019). We granted
certiorari, 591 U. S. ––– (2020), and now reverse.
II
Petitioners and the United States argue that respondents
improperly seek extraterritorial application of the ATS.
We agree.
Our precedents “refect a two-step framework for
analyzing extraterritoriality issues.” RJR Nabisco, Inc. v.
European Community, 579 U. S. 325, 337 (2016). First, we
presume that a statute applies only domestically, and we ask
“whether the statute gives a clear, affrmative indication”
that rebuts this presumption. Ibid. For the ATS, Kiobel
answered that question in the negative. 569 U. S., at 124.
Although we have interpreted its purely jurisdictional text
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Opinion of the Court
to implicitly enable courts to create causes of action, the ATS
does
not expressly “regulate conduct” at all, much less
“evince a `clear indication of extraterritoriality.' ” Id., at
115–118. Courts thus cannot give “extraterritorial reach”
to any cause of action judicially created under the ATS. Id.,
at 117–118. Second, where the statute, as here, does not
apply extraterritorially, plaintiffs must establish that “the
conduct relevant to the statute's focus occurred in the United
States.” RJR Nabisco, 579 U. S., at 337. “[T]hen the case
involves a permissible domestic application even if other con-
duct occurred abroad.” Ibid.
The parties dispute what conduct is relevant to the “focus”
of the ATS. Respondents seek a judicially created cause of
action to sue petitioners for aiding and abetting forced labor
overseas. Arguing that aiding and abetting is not even a
tort, but merely secondary liability for a tort, petitioners and
the United States contend that “the conduct relevant to the
[ATS's] focus” is the conduct that directly caused the injury.
See id., at 346 (a plaintiff who “does not overcome the
presumption against extraterritoriality . . . therefore must
allege and prove a domestic injury”). All of that alleged
conduct occurred overseas in this suit. The United States
also argues that the “focus” inquiry is beside the point;
courts should not create an aiding-and-abetting cause of ac-
tion under the ATS at all. See Central Bank of Denver,
N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164,
182–183 (1994) (“[W]hen Congress enacts a statute under
which a person may sue and recover damages from a private
defendant . . . , there is no general presumption that the
plaintiff may also sue aiders and abettors” because that
would create a “vast expansion of federal law”). For their
part, respondents argue that aiding and abetting is a free-
standing tort and that courts may create a private right of
action to enforce it under the ATS. They also contend that
the “focus” of the ATS is conduct that violates international
law, that aiding and abetting forced labor is a violation of

634 NESTLE
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Opinion of the Court
international law, and that domestic conduct can aid and abet
an
injury that occurs overseas.
Even if we resolved all these disputes in respondents'
favor, their complaint would impermissibly seek extraterri-
torial application of the ATS. Nearly all the conduct that
they say aided and abetted forced labor—providing training,
fertilizer, tools, and cash to overseas farms—occurred in
Ivory Coast. The Ninth Circuit nonetheless let this suit
proceed because respondents pleaded as a general matter
that “every major operational decision by both companies is
made in or approved in the U. S.” App. 314. But allega-
tions of general corporate activity—like decisionmaking—
cannot alone establish domestic application of the ATS.
As we made clear in Kiobel, a plaintiff does not plead facts
suffcient to support domestic application of the ATS simply
by alleging “mere corporate presence” of a defendant. 569
U. S., at 125. Pleading general corporate activity is no
better. Because making “operational decisions” is an ac-
tivity common to most corporations, generic allegations of
this sort do not draw a suffcient connection between the
cause of action respondents seek—aiding and abetting forced
labor overseas—and domestic conduct. “[T]he presumption
against extraterritorial application would be a craven watch-
dog indeed if it retreated to its kennel whenever some do-
mestic activity is involved in the case.” Morrison v. Na-
tional Australia Bank Ltd., 561 U. S. 247, 266 (2010). To
plead facts suffcient to support a domestic application of the
ATS, plaintiffs must allege more domestic conduct than gen-
eral corporate activity. The Ninth Circuit erred when it
held otherwise.
III
Respondents' suit fails for another reason, which does not
require parsing allegations about where conduct occurred:
We cannot create a cause of action that would let them sue
petitioners. That job belongs to Congress, not the Federal
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Judiciary. Sosa indicated that courts may exercise common-
law
authority under the ATS to create private rights of ac-
tion in very limited circumstances. 542 U. S., at 724. Sosa
suggested, for example, that courts could recognize causes
of action for three historical violations of international law:
“violation of safe conducts, infringement of the rights of am-
bassadors, and piracy.” Ibid. But our precedents since
Sosa have clarifed that courts must refrain from creating a
cause of action whenever there is even a single sound reason
to defer to Congress. See, e. g., Hernández, 589 U. S., at –––.
Tellingly, we have never created a cause of action under the
ATS. Even without reexamining Sosa, our existing prece-
dents prohibit us from creating a cause of action here.
A
Originally passed as part of the Judiciary Act of 1789, the
ATS provides jurisdiction to hear claims brought “by an
alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.” 28 U. S. C. § 1350.
If, for example, a treaty adopted by the United States cre-
ates a tort-related duty, federal district courts have jurisdic-
tion to hear claims by aliens for breach of that duty.
But the statute on its own does not empower aliens to sue.
We have been clear that “the ATS is a jurisdictional statute
creating no new causes of action.” Sosa, 542 U. S., at 724.
Aliens harmed by a violation of international law must rely
on legislative and executive remedies, not judicial remedies,
unless provided with an independent cause of action. In
more than 200 years, Congress has established just one: the
Torture Victim Protection Act of 1991. That Act creates a
private right of action for victims of torture and extrajudicial
killings in violation of international law. 106 Stat. 73, note
following 28 U. S. C. § 1350.
Because that cause of action does not apply here, respond-
ents ask us to create a new one. They suggest that a plain-
tiff is entitled to a judicially created cause of action absent
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compelling reasons to withhold one. But our precedents de-
mand
precisely the opposite rule.
In Sosa, we “assume[d]” that the First Congress, which
enacted the ATS, believed that federal courts, under general
common law, “would recognize private causes of action for
certain torts in violation of the law of nations.” 542 U. S.,
at 724. Although our decision in Erie R. Co. v. Tompkins,
304 U. S. 64 (1938), “denied the existence of any federal `gen-
eral' common law,” we suggested that a limited, residual
amount remained to create causes of action for violations of
international law. Sosa, 542 U. S., at 726, 729. We noted,
for example, that courts in certain circumstances likely could
recognize causes of action for violations of three historical
torts: “violation of safe conducts, infringement of the rights
of ambassadors, and piracy.” Id., at 724.
At the same time, we stressed that this authority was nar-
row. We noted that there was “no basis to suspect Congress
had any examples in mind beyond those [three] torts.” Ibid.
And we suggested that future “development” of law might
“preclud[e] federal courts from recognizing ” new causes of
action. Id., at 724–725.
To guide our reasoning in the future, we described a two-
step test that plaintiffs must satisfy before a court can create
a cause of action under the ATS. First, the plaintiff must
establish that the defendant violated “ `a norm that is spe-
cifc, universal, and obligatory' ” under international law.
Id., at 732. That norm must be “defned with a specifcity
comparable to” the three international torts known in 1789.
Id., at 725. Second, the plaintiff must show that courts
should exercise “judicial discretion” to create a cause of ac-
tion rather than defer to Congress. Id., at 726, 736, and
n. 27; Jesner, 584 U. S., at 257–258 (plurality opinion).
Judicial authority under that test was narrow at the out-
set. Our more recent precedents have made it narrower
still by stressing that judicial creation of a cause of action is
an extraordinary act that places great stress on the separa-
tion of powers. Although this Court in the mid-20th cen-
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tury often assumed authority to create causes of action,
Zi
glar v. Abbasi, 582 U. S. 120, 131–132 (2017), “[i]n later
years, we came to appreciate more fully the tension between
this practice and the Constitution's separation of legislative
and judicial power,” Hernández, 589 U. S., at –––. Because
Erie denied the existence of a federal general common law,
“a federal court's authority to recognize a damages remedy
must rest at bottom on a statute enacted by Congress.”
Hernández, 589 U. S., at ––– – –––. It follows that any judi-
cially created cause of action risks “upset[ting] the careful
balance of interests struck by the lawmakers.” Ibid.
To limit this stress on the separation of powers, our prece-
dents have made clear that the second step of Sosa—which
applies in any context where a plaintiff asks a court to create
a cause of ac ti on—is extraordi nar i ly str ic t. A cour t
“ `must' ” not create a private right of action if it can identify
even one “ `sound reaso[n] to think Congress might doubt the
effcacy or necessity of [the new] remedy.' ” Jesner, 584
U. S., at 264 (majority opinion) (quoting Abbasi, 582 U. S., at
137); see also Hernández, 589 U. S., at ––– (same). This test
is demanding by design, and we have yet to fnd it satisfed.
See Jesner, 584 U. S., at 272 (no judicially created causes of
action against foreign corporations); see also Sosa, 542 U. S.,
at 725 (no judicially created cause of action for illegal deten-
tion even under the less-demanding standard initially cre-
ated by Sosa).
B
Regardless of whether respondents have satisfed the frst
step of the Sosa test, it is clear that they have not satisfed
the second. Our decisions since Sosa, as well as congres-
sional activity, compel the conclusion that federal courts
should not recognize private rights of action for violations of
international law beyond the three historical torts identifed
in Sosa.
We recently identifed a sound reason to think Congress
might doubt a judicial decision to create a cause of action
that would enforce torts beyond those three: Creating a
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cause of action under the ATS “inherent[ly]” raises “foreign-
pol
icy concerns.” Jesner, 584 U. S., at 265 (majority opin-
ion). This suit illustrates the point, for the allegations here
implicate a partnership (the Harkin-Engel Protocol and sub-
sequent agreements) between the Department of Labor,
petitioners, and the Government of Ivory Coast. Under
that partnership, petitioners provide material resources and
training to cocoa farmers in Ivory Coast—the same kinds of
activity that respondents contend make petitioners liable for
violations of international law. Companies or individuals
may be less likely to engage in intergovernmental efforts if
they fear those activities will subject them to private suits.
Although specifc foreign-policy concerns may vary from
case to case, our precedents are clear that creating a cause
of action to enforce international law beyond three historical
torts invariably gives rise to foreign-policy concerns. Ibid.
(“foreign-policy . . . concerns [are] inherent in ATS litiga-
tion”). Because “[t]he political branches, not the Judiciary,
have the responsibility and institutional capacity to weigh
foreign-policy concerns,” there will always be a sound reason
for courts not to create a cause of action for violations of
international law—other than perhaps for those three torts
that were well established in 1789. Id., at 264–265.
Congressional activity independently provides a sound
reason to conclude that Congress might doubt a judicially
created cause of action. It is instructive to consider the
changes Congress made to the remedies in the Traffcking
Victims Protection Reauthorization Act of 2003 (TVPRA),
which imposes liability for offenses related to human traf-
fcking. The initial text, passed in 2000, imposed criminal
liability for human traffcking. § 112, 114 Stat. 1464. Con-
gress later added a private right of action in 2003, allowing
plaintiffs to sue the immediate “perpetrator” of a human
traffcking violation. § 4(a)(4)(A), 117 Stat. 2878. And then
in 2008, Congress created the present private right of action,
allowing plaintiffs to sue defendants who are involved indi-
rectly with slavery. §§ 221, 222(b)(3), 122 Stat. 5067–5068.
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This Act highlights that there are many different ways to
create
a cause of action that would enforce developments in
international law beyond the three historical torts identifed
in Sosa—too many for courts to choose from when using the
limited judicial discretion that Sosa recognizes. Congress
may well decide to create a cause of action against one cate-
gory of defendants but not another. See Jesner, 584 U. S.,
at 266 (plurality opinion) (recognizing that Congress “unam-
biguously” limited the only legislative cause of action passed
under the ATS to one category of defendants). Or it might
make distinctions—as it did in the TVPRA—between direct
and indirect liability. Congress settled on the current ap-
proach to private remedies against human traffcking only
after its “understanding of the problem evolved” through
years of studying “how to best craft a response.” Brief for
Members of Congress as Amici Curiae 9, 13. The judicial
role is to resolve cases and controversies, which typically
present only the perspectives of the parties. The Judiciary
does not have the “institutional capacity” to consider all fac-
tors relevant to creating a cause of action that will “inher-
ent[ly]” affect foreign policy. Jesner, 584 U. S., at 265 (ma-
jority opinion). Respondents attempt to brush aside these
concerns by suggesting that their allegations about decades-
old conduct could satisfy the TVPRA if Congress had
enacted that law earlier. This observation simply proves
the point. Congress chose not to write a retroactive statute.
To create a cause of action here would impermissibly second-
guess Congress' decision not to subject past conduct to a
new standard.
When we decided Sosa, we remarked that there is “no
basis to suspect Congress had any examples in mind beyond
th[ree] torts” when it enacted the ATS. 542 U. S., at 724.
We “assume[d]” that no “development” of law had yet “pre-
cluded federal courts from recognizing ” causes of action not
created by Congress. Id., at 724–725. Nobody here has ex-
pressly asked us to revisit Sosa. But precedents since Sosa
have substantially narrowed the circumstances in which “ju-

640 NESTLE
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Gorsuch, J., concurring
dicial discretion” under the Sosa test is permitted. Id., at
726,
736, and n. 27. Under existing precedent, then, courts
in some circumstances might still apply Sosa to recognize
causes of action for the three historical torts likely on the
mind of the First Congress. But as to other torts, our prec-
edents already make clear that there always is a sound rea-
son to defer to Congress, so courts may not create a cause
of action for those torts. Whether and to what extent de-
fendants should be liable under the ATS for torts beyond the
three historical torts identifed in Sosa lies within the prov-
ince of the Legislative Branch.
***
The judgment of the Court of Appeals is reversed, and the
cases are remanded for further proceedings.
It is so ordered.
Justice Gorsuch, with whom Justice Alito joins as
to Part I, and with whom Justice Kavanaugh joins as to
Part II, concurring.
I write separately to add two points. First, this Court
granted certiorari to consider the petitioners' argument that
the Alien Tort Statute (ATS) exempts corporations from suit.
Rather than resolve that question, however, the Court rests
its decision on other grounds. That is a good thing: The
notion that corporations are immune from suit under the
ATS cannot be reconciled with the statutory text and origi-
nal understanding. Second, the time has come to jettison
the misguided notion that courts have discretion to create
new causes of action under the ATS—for the reasons
Justice Thomas offers and others as well.
I
The First Congress enacted what we today call the ATS
as part of the Judiciary Act of 1789. At the time, the ATS
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Gorsuch, J., concurring
occupied only a paragraph in the larger statute, providing
federa
l courts jurisdiction “concurrent with the courts of the
several States” over “all causes where an alien sues for a
tort only in violation of the law of nations or a treaty of the
United States.” § 9, 1 Stat. 77. The law has hardly
changed since and it remains similarly succinct: “The district
courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States.” 28 U. S. C. § 1350.
Nothing in the ATS supplies corporations with special pro-
tections against suit. The statute specifes which plaintiffs
may sue (“alien[s]”). It speaks of the sort of claims those
plaintiffs can bring (“tort[s]” in “violation of the law of na-
tions or a treaty of the United States”). But nowhere does
it suggest that anything depends on whether the defendant
happens to be a person or a corporation.
Understandably too. Causes of action in tort normally
focus on wrongs and injuries, not who is responsible for
them. When the First Congress passed the ATS, a “tort”
meant simply an “injury or wrong ” whoever committed it.
G. Jacob, O. Ruff head, & J. Morgan, A Law Dictionary (10th
ed. 1773). Nothing has changed in the intervening centu-
ries. See, e. g., Black's Law Dictionary 1717 (10th ed. 2014)
(a tort is a “civil wrong . . . for which a remedy may be
obtained”). Generally, too, the law places corporations and
individuals on equal footing when it comes to assigning
rights and duties. Even before the ATS's adoption, Black-
stone explained that, “[a]fter a corporation is so formed and
named, it acquires many powers, rights, capacities, and inca-
pacities,” including “[t]o sue or be sued, implead or be im-
pleaded, grant or receive, by it's corporate name, and do all
other acts as natural persons may.” 1 W. Blackstone, Com-
mentaries on the Laws of England 463 (1765).
If more evidence were necessary to prove the point, plenty
would seem available. Case after case makes plain that,
“[a]t a very early period, it was decided in Great Britain, as

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well as in the United States, that actions might be main-
t
ained against corporations for torts . . . of nearly every vari-
ety.” Philadelphia, W., & B. R. Co. v. Quigley, 21 How. 202,
210 (1859); see also, e. g., Chestnut Hill & Spring House
Turnpike Co. v. Rutter, 4 Serg. & Rawle 6, 17 (Pa. 1818)
(“[F]rom the earliest times to the present, corporations have
been held liable for torts”). Justice Story deemed the point
“unquestionable.” United States v. Amedy, 11 Wheat. 392,
412 (1826). And by the late 19th century, the proposition
that tort actions could be brought against corporations was
“so well settled as not to require the citation of any authori-
ties.” Baltimore & Potomac R. Co. v. Fifth Baptist Church,
108 U. S. 317, 330 (1883).
More evidence yet lies in the circumstances surrounding
the ATS's adoption. It seems Congress enacted the statute
as part of a comprehensive effort to ensure judicial recourse
for tortious conduct that otherwise could have provided for-
eign nations “with just cause for reprisals or war.” Bellia &
Clark, The Alien Tort Statute and the Law of Nations, 78 U.
Chi. L. Rev. 445, 476–477 (2011); see Jesner v. Arab Bank,
PLC, 584 U. S. 241, 288–289 (2018) (Gorsuch, J., concurring
in part and concurring in judgment). In particular, Con-
gress may have had an eye on three specifc problems: viola-
tions of safe conduct, interference with ambassadors, and pi-
racy. On the view of many, Blackstone included, these three
offenses entailed not just injuries to the affected individuals
but to their nation-states. 4 Commentaries on the Laws of
England 68 (1769). So, if Americans engaged in them, and
if American courts provided foreigners no recourse of any
kind, European powers would have had just cause to bully
the new Nation. Id., at 68–69.
In that context, distinguishing between individuals and
corporations would seem to make little sense. If early
Americans assaulted or abducted the French Ambassador,
what difference would it have made if the culprits acted indi-
vidually or corporately? Either way, this Nation's failure to

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“oblige the guilty to repair the damage” would have provided
just
cause for reprisals or worse. 1 E. de Vattel, The Law
of Nations, bk. II, § 76, p. 145 (1760). Founding-era cases
involving piracy seem to confrm the point too. Injured
plaintiffs routinely brought in rem proceedings against ships
involved in piracy regardless of the owner's personal involve-
ment or liability. See, e. g., Harmony v. United States, 2
How. 210, 233–234 (1844). In fact, one of the earliest ATS
cases involved an action against a vessel. See Jansen v. The
Vrow Christina Magdalena, 13 F. Cas. 356, 358–359 (No.
7,216) (SC 1794). All of which underscores the ATS has
never distinguished between defendants.
II
The real problem with this lawsuit and others like it thus
isn't whether the defendant happens to be a corporation. To
my mind, it's this: Just as the ATS nowhere privileges corpo-
rations, it nowhere deputizes the Judiciary to create new
causes of action. Rather, the statute confers “jurisdiction”
on federal courts to adjudicate “tort” claims by aliens for
violations “of the law of nations.” Perhaps this language
was originally understood to furnish federal courts with au-
thority to entertain a limited number of specifc and existing
intentional tort claims that, if left unremedied, could give rise
to reprisals or war. See Jesner, 584 U. S., at 281–285, 288–289
(opinion of Gorsuch, J.); Bellia, 78 U. Chi. L. Rev., at 515–
521. Perhaps, too, the law affords federal courts jurisdiction
to hear any other tort claims Congress chooses to create.
But nothing in the statute's terse terms obviously authorizes
federal courts to invent new causes of action on their own.
Nor would I fnd such an extraordinary authority lingering
latent after all this time. This Court has never—not once
in 230 years—invoked the ATS to create a new cause of ac-
tion. Of course, courts at common law may have enjoyed
the power to create (or “recognize”) causes of action. But
the power to create a cause of action is in every meaningful
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sense the power to enact a new law that assigns new rights
and
new legally enforceable duties. And our Constitution
generally assigns that power to Congress. A self-governing
people depends on elected representatives—not judges—to
make its laws. So what may have been a “ `proper function
for common-law courts' ” in England is no longer generally
appropriate “ `for federal tribunals' ” in this country. Alex-
ander v. Sandoval, 532 U. S. 275, 287 (2001). And it's not as
if we have ever, in over two centuries, faced congressional
rebuke for being asleep at the ATS switch. Just the oppo-
site: The one time Congress deemed a new ATS action worth
having, it created that action itself in the Torture Victim
Protection Act of 1991. See 106 Stat. 73.
To be sure, the Court recently complicated this picture in
Sosa v. Alvarez-Machain, 542 U. S. 692 (2004). There, the
Court recognized that federal judges usually may not invoke
the ATS to create new causes of action. The Court also re-
fused to create the new cause of action the plaintiff proposed.
Id., at 725. But Sosa also proceeded to speculate that—in
some future case—this Court might invoke the ATS to create
a new cause of action. “[T]he door,” Sosa said, is “ajar sub-
ject to vigilant doorkeeping.” Id., at 729.
To what end? We have witnessed nearly two decades of
ATS litigation since Sosa. During that period, plaintiffs
have presented for this Court's consideration one new poten-
tial cause of action after another. Each time, the lawyering
has been thoughtful and able. Always, too, the proposed
cause of action is potentially worthy. Yet, in every case, we
have turned up our noses. I would stop feigning some def-
ciency in these offerings. However vigilant the doorkeeper,
the truth is this is a door Sosa should not have cracked.
Whether and which international norms ought to be carried
into domestic law—and how best to accomplish that goal
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poses “delicate” and “complex” questions involving “large el-
ements
of prophecy . . . for which the Judiciary has neither
aptitude, facilities nor responsibility.” Chicago & Southern
Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111
(1948) (Jackson, J., for the Court). Were we to create new
causes of action, we would risk doing exactly what Congress
adopted the ATS to avoid: complicating or even rupturing
this Nation's foreign relationships. When it comes to re-
sponsibility in this area, the Constitution could not be
clearer. It invests Congress with the power to “defne and
punish . . . Offences against the Law of Nations” and to “reg-
ulate Commerce with foreign Nations.” Art. I, § 8. To the
President belongs the responsibility of resolving diploma-
tic disputes and commanding the Armed Forces. Art. II,
§§ 2–3. The Judiciary is assigned no comparable role. See
Jesner, 584 U. S., at 284 (opinion of Gorsuch, J.). Respect-
ing all this, the Court has never purported to create a new
cause of action under the guise of the ATS. Now would be
an exceedingly strange time to start.
Admitting this much would make cases like the one before
us easy. The plaintiffs seek a new cause of action. There
may be compelling reasons for adopting one, or perhaps some
diplomatic concern militating against it. But no one suggests
that the plaintiffs' cause of action was among those the ATS
was originally understood to allow. Nor does anyone sug-
gest that Congress has authorized it. To know that should
be enough to know that any debate over the plaintiffs' pro-
posed cause of action belongs before lawmakers, not judges.
Making this clear would have other virtues too. It would
get this Court out of the business of having to parse out
ever more convoluted reasons why it declines to exercise its
assumed discretion to create new ATS causes of action. It
would absolve future parties from years of expensive and
protracted litigation destined to yield nothing. It would af-
ford everyone interested in these matters clear guidance
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about whom they should lobby for new laws. It would avoid
the
false modesty of adhering to a precedent that seized
power we do not possess in favor of the truer modesty of
ceding an ill-gotten gain. And it would clarify where ac-
countability lies when a new cause of action is either created
or refused: With the people's elected representatives.
Justice Sotomayor, with whom Justice Breyer and
Justice Kagan join, concurring in part and concurring in
the judgment.
I join Parts I and II of the Court's opinion. Because re-
spondents have failed to allege a domestic application of the
Alien Tort Statute (ATS), their complaint must be dismissed.
I do not, however, join Justice Thomas' alternative path
to that disposition, which would overrule Sosa v. Alvarez-
Machain, 542 U. S. 692 (2004), in all but name. The First
Congress enacted the ATS to ensure that federal courts are
available to foreign citizens who suffer international law vio-
lations for which other nations may expect the United States
to provide a forum for redress. Justice Thomas would
limit the ATS' reach to only the three international law torts
that were recognized in 1789. That reading contravenes
both this Court's express holding in Sosa and the text and
history of the ATS.
I
A
Included in the Judiciary Act of 1789, the ATS gave federal
courts “cognizance . . . of all causes where an alien sues for
a tort only in violation of the law of nations or a treaty of
the United States.” Act of Sept. 24, 1789, § 9, 1 Stat. 77.
The ATS does not list the torts that fall within its purview.
Rather, the statute was “ `enacted on the understanding that
[federal] common law would provide a cause of action for [a]
modest number of international law violations.' ” Kiobel v.
Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013) (quot-

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Opinion of Sotomayor, J.
ing Sosa, 542 U. S., at 724; some alterations in original).
Three
such torts were “probably on minds of the men who
drafted the ATS”: “violation of safe conducts, infringement
of the rights of ambassadors, and piracy.” Id., at 715 (citing
4 W. Blackstone, Commentaries on the Laws of England 68
(1769)).
Unsurprisingly, the domestic and international legal land-
scape has changed in the two centuries since Congress
enacted the ATS. On the one hand, this Court in Erie
R. Co. v. Tompkins, 304 U. S. 64 (1938), “denied the existence
of any federal `general' common law.” Sosa, 542 U. S., at 726
(quoting 304 U. S., at 78). Erie thus foiled the First Con-
gress' expectation “that the common law would,” of its own
accord, “provide a cause of action for the modest number of
international law violations,” 542 U. S., at 724, that qualify
as “tort[s] . . . in violation of the law of nations,” 28 U. S. C.
§ 1350. On the other hand, the class of law-of-nations torts
has grown “with the evolving recognition . . . that certain
acts constituting crimes against humanity are in violation of
basic precepts of international law.” Jesner v. Arab Bank,
PLC, 584 U. S. 241, 255 (2018). Like the pirates of the 18th
century, today's torturers, slave traders, and perpetrators of
genocide are “ `hostis humani generis, an enemy of all man-
kind.' ” Sosa, 542 U. S., at 732.
The Court reconciled these two legal developments in Sosa
v. Alvarez-Machain. There, the Court explained that it
would “be unreasonable to assume that the First Congress
would have expected federal courts to lose all capacity to
recognize enforceable international norms simply because
the common law might lose some metaphysical cachet” in
a post-Erie world. 542 U. S., at 730. Indeed, while Erie
rejected the notion of a general federal common law, the
“post-Erie understanding has identifed limited enclaves in
which federal courts may derive some substantive law in a
common law way.” 542 U. S., at 729. For over 200 years
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(both before and after Erie), courts have adhered to the
pr
inciple that “the domestic law of the United States recog-
nizes the law of nations.”
1
542 U. S., at 729.
While Sosa refused to “close the door” to “judicial recog-
nition of actionable international norms,” it remains “sub-
ject to vigilant doorkeeping.” Ibid. Sosa explained that
“courts should require any claim based on the present-day
law of nations to rest on a norm of international character
accepted by the civilized world and defned with a specifcity
comparable to the features of the 18th-century paradigms”
contemplated by the First Congress (i. e., norms regarding
safe conducts, the rights of ambassadors, and piracy). Id.,
at 725. The Court elaborated that “the determination
whether a norm is suffciently defnite to support a cause of
action should (and, indeed, inevitably must) involve an ele-
ment of judgment about the practical consequences of mak-
ing that cause available to litigants in the federal courts.”
Id., at 732–733 (footnote omitted).
In the years since, this Court has read Sosa to announce
a two-step test for recognizing the availability of a cause of
action under the ATS. Courts frst ask “whether a plaintiff
can demonstrate that the alleged violation is `of a norm that
is specifc, universal, and obligatory.' ” Jesner, 584 U. S., at
257–258 (plurality opinion) (quoting Sosa, 542 U. S., at 732).
If so, then “it must be determined further whether allowing
[a] case to proceed under the ATS is a proper exercise of
judicial discretion.” Jesner, 584 U. S., at 258.
B
Justice Thomas reads Sosa and this Court's subsequent
precedents to impose an “extraordinarily strict” standard at
Sosa's second step. Ante, at 637. If a court “can identify
1
Other “enclaves” in which federal courts develop legal principles in a
common-law fashion include, for example, the areas of admiralty law, dis-
putes between States, and some aspects of federal labor law. See Collins
v. Virginia, 584 U. S. 586, 607 (2018) (Thomas, J., concurring).
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even one `sound reaso[n]' ” to think Congress might doubt
the
need for a cause of action under the ATS, we are told,
the court should refuse to recognize it. Ibid. (quoting
Jesner, 584 U. S., at 264 (majority opinion); some internal
quotation marks omitted).
The trouble with Justice Thomas' test is that it is un-
moored from both history and precedent. The ATS was a
statute born of necessity. In the early days of the Republic,
the “Continental Congress was hamstrung by its inability”
under the Articles of Confederation “to `cause infractions of
treaties, or of the law of nations to be punished.' ” Sosa, 542
U. S., at 716 (quoting J. Madison, Journal of the Constitu-
tional Convention 60 (E. Scott ed. 1893)). The United
States' failure to redress such offenses “caused substantial
foreign-relations problems,” Jesner, 584 U. S., at 253, and
“threaten[ed] serious consequences in international affairs,”
Sosa, 542 U. S., at 715. On more than one occasion (and in
no uncertain terms), foreign powers expressed their dis-
pleasure with the United States' failure to provide redress
for law-of-nations violations against their citizens.
2
See
Jesner, 584 U. S., at 253; see also Kiobel, 569 U. S., at 120;
Sosa, 542 U. S., at 716–717, and n. 11. Congress' “principal
2
Two “notorious episodes,” in particular, underscored Congress' impo-
tence. Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 120 (2013).
The frst occurred in 1784 when a French adventurer assaulted the Secre-
tary of the French Legation in Philadelphia, prompting the French Minis-
ter to complain to Congress “that a violation of the laws of Nations . . .
hath been committed.” 27 Journals of the Continental Congress 478 (G.
Hunt ed. 1928). Three years later, a New York City constable created
another diplomatic imbroglio by entering the home of the Dutch Ambassa-
dor and arresting one of his servants. The Ambassador wrote to the Sec-
retary of Foreign Affairs, calling the incident “a most notorious and direct
violation of the rights of nations” and demanding the Secretary's “offcial
[interposition] . . . to obtain the satisfaction due . . . by virtue of the laws
of nations.” Letter from P. Van Berckel to J. Jay (Dec. 18, 1787), in 3
Dept. of State, The Diplomatic Correspondence of the United States of
America 443 (1837) (hereinafter Diplomatic Correspondence) (brackets in
original).
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objective” in establishing federal jurisdiction over such
tor
ts, therefore, “was to avoid foreign entanglements by en-
suring the availability of a federal forum where the failure
to provide one might cause another nation to hold the United
St ates responsible for an i n jury to a foreig n citi zen. ”
Jesner, 584 U. S., at 255.
As this Court explained in Sosa, “[t]he anxieties of the
preconstitutional period cannot be ignored easily enough to
think that the [ATS] was not meant to have a practical ef-
fect.' ” 542 U. S., at 719. It was Congress' assessment that
diplomatic strife is best avoided by providing a federal forum
to redress those law-of-nations torts that, if not remedied,
could bring international opprobrium upon the United
States. Because the First Congress did not pass “the ATS
only to leave it lying fallow indefnitely,” the statute “is best
read as having been enacted on the understanding that the
common law would provide a cause of action” for widely rec-
ognized torts in violation of the law of nations. Id., at 719,
724; see also Jesner, 584 U. S., at 254 (“[T]he [ATS] was not
enacted to sit on a shelf awaiting further legislation”). In
other words, from the moment the ATS became law, Con-
gress expected federal courts to identify actionable torts
under international law and to provide injured plaintiffs with
a forum to seek redress.
That historical fact must guide jurists when determining
“whether allowing [a] case to proceed under the ATS is a
proper exercise of judicial discretion.” Id., at 258 (plurality
opinion). Justice Thomas suggests that courts may recog-
nize a cause of action under the ATS only “in very limited
circumstances,” if at all. Ante, at 635. But the ATS calls
for much more. The First Congress made the legislative de-
termination that a remedy should be available under the ATS
to foreign citizens who suffer “tort[s] . . . in violation of the
law of nations.” 28 U. S. C. § 1350. Barring some extra-
ordinary collateral consequence that could not have been
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guise of judicial discretion, second-guess that legislative
decisi
on.
Justice Thomas therefore errs in asserting that courts
“plac[e] great stress on the separation of powers” when they
recognize causes of action under the ATS. Ante, at 636.
That would be news to the First Congress, which from the
beginning counted on federal courts to “recognize enforce-
able international norms” in order to give the ATS “practical
effect.” Sosa, 542 U. S., at 719, 730. To now suggest that
identifying actionable torts “risks `upset[ting] the careful
balance of interests struck by the lawmakers' ” is ahistorical
at best. Ante, at 637 (quoting Hernández v. Mesa, 589 U. S.
–––, ––– (2020); brackets in original).
Indeed, one need look no further than the text of the ATS
to understand the task that the First Congress assigned to
the Federal Judiciary. As originally enacted, the ATS gave
federal courts “cognizance . . . of all causes where an alien
sues for a tort only in violation of the law of nations or a
treaty of the United States.” § 9, 1 Stat. 77. Congress did
not need to legislate those “causes” into existence because
international law supplied the substantive contours of action-
able torts, and domestic law indisputably incorporated inter-
national law. See Sosa, 542 U. S., at 729. Neither of those
premises changed after Erie. Justice Thomas thus mis-
conceives the judicial task in asking whether courts may
“create” causes of action under the ATS. Ante, at 635; see
also ante, at 643 (Gorsuch, J., concurring). The assignment
is much more modest: Courts must, based on their interpre-
tation of international law, identify those norms that are so
specifc, universal, and obligatory that they give rise to a
“tort” for which Congress expects federal courts to entertain
“causes”—or, in modern parlance, “civil action[s],” 28 U. S. C.
§ 1350—for redress.
Implicitly acknowledging his departure from Sosa, Jus-
tice Thomas argues that “precedents since Sosa have
substantially narrowed the circumstances in which `judicial
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discretion' ” to recognize ATS causes of action “is permit-
ted.
” Ante, at 639–640. But the case on which he princi-
pally relies, Hernández v. Mesa, 589 U. S. –––, is wholly inap-
posite. Hernández cautions that “fnding that a damages
remedy is implied by a provision that makes no reference to
that remedy may upset the careful balance of interests
struck by the lawmakers.” Id., at –––. The ATS, however,
is not a statute that “makes no reference to [a] remedy.”
Ibid. Just the opposite: The ATS expressly contemplates
that federal courts will hear “civil action[s]” for “tort[s] . . .
committed in violation of the law of nations.” 28 U. S. C.
§ 1350. As such, “a federal court's authority to recognize a
damages remedy” under the ATS very much “rest[s] at bot-
tom on a statute enacted by Congress.”
3
Hernández, 589
U. S., at –––. Respect for the separation of powers is hardly
served by refusing a legislatively assigned task.
II
Applying the wrong standard at Sosa's second step, Jus-
tice Thomas reaches the wrong answer. He announces
that, except for “the three historical torts likely on the mind
of the First Congress,” “there always is a sound reason” for
courts to refuse to recognize actionable torts under the ATS.
4
3
For similar reasons, Justice Thomas' reliance on Ziglar v. Abbasi, 582
U. S. 120 (2017), is misplaced. There, this Court explained that, “when
deciding whether to recognize an implied cause of action, the `determina-
tive' question is one of statutory intent.” Id., at 133 (quoting Alexander
v. Sandoval, 532 U. S. 275, 286 (2001)). The ATS leaves no room to doubt
that Congress intended foreign citizens to be able to bring “civil action[s]”
for “tort[s] . . . committed in violation of the law of nations.” 28 U. S. C.
§ 1350.
4
Notably, Justice Thomas' alternative disposition would not answer
the question this Court granted certiorari to address, i. e., whether domes-
tic corporations are immune from suit under the ATS (regardless of the
kind of torts for which they are sued). See Pet. for Cert. in No. 19–416,
at i; Pet. for Cert. in No. 19–453, at i. For reasons similar to those articu-
lated in my dissent in Jesner v. Arab Bank, PLC, 584 U. S. 241, 293 (2018),
I would answer this question in the negative. (So would four other Jus-
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Ante, at 640. He offers three reasons for this dramatic cur-
t
ailment of the ATS. None is persuasive.
First, Justice Thomas argues that “creating a cause of
action to enforce international law beyond three historical
tor ts invar iably g ives r ise to foreig n-policy concer ns. ”
Ante, at 638. He offers no meaningful support for that
sweeping assertion, nor does he explain why an ATS suit for
the tort of piracy, for example, would categorically present
fewer foreign-policy concerns than a suit for aiding and abet-
ting child slavery. That said, Justice Thomas is correct
insofar as he observes that, in some subset of cases, the dip-
lomatic costs of allowing an ATS suit to proceed may out-
weigh the benefts of providing redress to an injured foreign
citizen. “[W]hen international friction” does arise, however,
“a court should respond with the doctrine that speaks di-
rectly to the friction's source.” Jesner, 584 U. S., at 312 (So-
tomayor, J., dissenting). Such tools include the presump-
tion against extraterritoriality, limits on personal
jurisdiction, case-by-case deference to the political branches,
and the doctrines of exhaustion, forum non conveniens, and
international comity. See ibid.; Kiobel, 569 U. S., at 133
(Breyer, J., concurring in judgment); Sosa, 542 U. S., at 733,
n. 21. Ignoring all these options, Justice Thomas would
instead bar any ATS suit that seeks to hold a defendant liable
for violating any international norm that developed after the
18th century. That is a gross overreaction to a manageable
(and largely hypothetical) problem.
Moreover, in arguing that ATS litigation “ `inherent[ly]'
raises `foreign-policy concerns,' ” ante, at 638 (quoting
Jesner, 584 U. S., at 265 (majority opinion)), Justice Thomas
ignores the other side of the equation: that foreign nations
may take (and, indeed, historically have taken) umbrage at the
tices.) As Justice Gorsuch ably explains, there is no reason to insulate
domestic corporations from liability for law-of-nations violations simply
because they are legal rather than natural persons. See ante, at 640–643
(concurring opinion).
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United States' refusal to provide redress to their citizens for
i
nternational law torts committed by U. S. nationals within
the United States. See supra, at 649, and n. 2. Closing the
courthouse doors thus “gives rise to foreign-policy concerns”
just as “invariably,” ante, at 638, as leaving them open.
Second, Justice Thomas suggests that federal courts lack
“the `institutional capacity' to consider all factors relevant”
to recognizing actionable torts under the ATS. Ante, at 639;
see also ante, at 644–645 (opinion of Gorsuch, J.). It would
be surprising (and, I suspect, distressing) to the Congress
that enacted the ATS to learn that federal courts lack institu-
tional capacity to do the very thing the ATS presumes they
will do. Justice Thomas' pessimism aside, there is no rea-
son to doubt federal courts' ability to identify those norms
of international law that are suffciently “ `specifc, universal,
and obligatory' ” to give rise to a cause of action under the
ATS. Jesner, 584 U. S., at 258 (plurality opinion) (quoting
Sosa, 542 U. S., at 732). After all, “[f]or two centuries” this
Court has “affrmed that the domestic law of the United
States recognizes the law of nations.” Id., at 729. There
is nothing so mysterious about a law's international origins
that would prevent courts—bodies specifcally tasked with,
and particularly capable of, interpreting and applying
laws—from ably adjudicating a suit for damages arising
out of a “tort . . . committed in violation of the law of
nations.”
5
28 U. S. C. § 1350.
5
While international law supplies the substantive prohibitions that give
rise to actionable torts under the ATS (e. g., the prohibition against child
slavery), domestic law provides the answer to any subsidiary questions
regarding “how a particular actor is held liable for a given law-of-nations
violation.” Jesner, 584 U. S., at 299 (Sotomayor, J., dissenting). To the
extent Justice Thomas is worried that federal courts are incapable of
identifying such rules of liability in the absence of statutory direction, his
concern is belied by the Federal Judiciary's extensive record of doing just
that. See, e. g., Boyle v. United Technologies Corp., 487 U. S. 500, 512–
513 (1988) (recognizing a “Government contractor defense” to state-law
product-liability suits); Consolidated Rail Corporation v. Gottshall, 512

Cite
as: 593 U. S. 628 (2021)
655
Opinion of Sotomayor, J.
Finally, pointing to the Traffcking Victims Protection Re-
author
ization Act (TVPRA), Justice Thomas argues that
Congress' decision to impose criminal and civil liability on
human traffckers indicates that “Congress might doubt” the
wisdom of recognizing a cause of action for torts other than
the violation of safe conducts, infringement of the rights of
ambassadors, and piracy. Ante, at 637. It is hard to under-
stand why that would be true. That Congress has chosen
to legislate against certain abhorrent conduct does not make
that conduct any less tortious under international law. Nor
does it increase the likelihood that negative “practical conse-
quences” will arise from allowing foreign citizens to hold de-
fendants liable for their torts under the ATS. Sosa, 542
U. S., at 732. On the contrary, the fact that Congress au-
thorized victims of slavery to sue perpetrators under the
TVPRA provides strong evidence that Congress would not,
in fact, doubt the effcacy of permitting victims of slavery to
sue perpetrators under the ATS (insofar as the plaintiffs
seek a domestic application of the statute).
Justice Thomas replies that, because the TVPRA is not
“a retroactive statute,” entertaining respondents' suit would
“impermissibly second-guess Congress' decision not to sub-
ject past conduct to a new standard.” Ante, at 639. Surely
Justice Thomas does not mean that the proh ibiti on
against child slavery is a “new standard.” Nor is it tena-
ble to argue that, at the time respondents were enslaved
on Ivorian cocoa farms, international law permitted the
aiding and abetting of forced labor.
6
Perhaps Justice
U. S. 532, 541–557 (1994) (recognizing and defning the scope of liability
for negligent infiction of emotional distress under the Federal Employers'
Liability Act); Agency Holding Corp. v. Malley-Duff & Associates, Inc.,
483 U. S. 143, 156 (1987) (borrowing the Clayton Act's statute of limitations
for purposes of civil actions brought under the Racketeer Infuenced and
Corrupt Organizations Act).
6
See, e. g., Khulumani v. Barclay Nat. Bank Ltd., 504 F. 3d 254, 268–
277 (CA2 2007) (Katzmann, J., concurring) (surveying aiding-and-abetting
liability under international law).
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656 NESTLE
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Opinion of Sotomayor, J.
Thomas means to argue that, by adding a cause of action
to
the TVPRA in 2008, Congress implicitly foreclosed the
availability of similar causes of action under the ATS. But
the legislative history says otherwise: The Conference Re-
port that accompanied the original TVPRA took pains to em-
phasize “that nothing in [the TVPRA] will preclude traffck-
ing victims from availing themselves of applicable State,
local or other Federal laws in seeking compensatory or other
damages and relief in any civil proceeding.”
7
H. R. Conf.
Rep. No. 106–939, p. 93 (2000). At bottom, then, there is
simply no basis to infer from “congressional activity,” ante,
at 637, that Congress has by implication grafted a truncated
list of actionable torts onto the ATS that appears nowhere
in the statutory text.
***
The First Congress chose to provide noncitizens a federal
forum to seek redress for law-of-nations violations, and it
counted on federal courts to facilitate such suits by recogniz-
ing causes of action for violations of specifc, universal, and
obligatory norms of international law. I would not abdicate
the Court's obligation to follow that legislative directive.
Because I fnd no support for Justice Thomas' position in
7
Justice Gorsuch also points out that “[t]he one time Congress
deemed a new ATS action worth having, it created that action itsel f in
the Torture Victim Protection Act of 1991 [(TVPA)].” Ante, at 644 (con-
curring opinion). But Justice Gorsuch fails to mention what the Com-
mittee Reports accompanying that statute actually said: that while the
TVPA “establish[ed] an unambiguous and modern basis for a cause of ac-
tion” to sue perpetrators of torture and extrajudicial killing, the ATS “has
other important uses and should not be replaced.” H. R. Rep. No. 102–
367, pt. 1, p. 3 (1991); accord, S. Rep. No. 102–249, p. 4 (1991). The Re-
ports cautioned that “claims based on torture or summary executions do
not exhaust the list of actions that may appropriately be covered” by the
ATS, which “should remain intact to permit suits based on other norms
that already exist or may ripen in the future into rules of customary inter-
national law.” H. R. Rep. No. 102–367, at 4; accord, S. Rep. No. 102–249,
at 5.
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657
Alito, J., dissenting
the ATS or in this Court's precedents, I do not join that por-
ti
on of Justice Thomas' opinion.
Justice Alito, dissenting.
The primary question presented in the two certiorari peti-
tions fled in these cases is whether domestic corporations
are immune from liability under the Alien Tort Statute
(ATS), 28 U. S. C. § 1350. I would decide that question, and
for the reasons explained in Part I of Justice Gorsuch's
opinion, which I join, I would hold that if a particular claim
may be brought under the ATS against a natural person who
is a United States citizen, a similar claim may be brought
against a domestic corporation. See also ante, at 652–653,
n. 4 (Sotomayor, J., joined by Breyer and Kagan, JJ., con-
curring in part and concurring in judgment). Corporate
status does not justify special immunity.
The Court instead disposes of these cases by holding that
respondents' complaint seeks extraterritorial application of
the ATS, but in my view, we should not decide that question
at this juncture. It is tied to the question whether the plain-
tiffs should be allowed to amend their complaint, and in order
to reach the question of extraterritoriality, the Court must
assume the answers to a host of important questions. Spe-
cifcally, the Court must assume: (1) that, contrary to the
arguments set out in Part III of Justice Thomas's opinion
and Part II of Justice Gorsuch's opinion, it is proper for
us to recognize new claims that may be asserted under the
ATS; (2) that the conduct petitioners are alleged to have
aided and abetted provides the basis for such a claim; (3) that
there is a “specifc, universal, and obligatory” international
law norm, Sosa v. Alvarez-Machain, 542 U. S. 692, 732 (2004)
(internal quotation marks omitted), that imposes liability for
what our legal system terms aiding and abetting; (4) that, if
there is such a norm, we should choose to recognize an ATS
aiding-and-abetting claim, see id., at 725–728, 732, 733, n. 21;
and (5) that respondents' complaint adequately alleges all the
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658 NESTLE
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Alito, J., dissenting
elements of such a claim, including the requisite mens rea.
Compare
Doe I v. Nestle USA, Inc., 788 F. 3d 946, 948–951
(CA9 2015) (Bea, J., dissenting from denial of reh'g en banc)
(aider and abettor must act purposefully); Aziz v. Alcolac,
Inc., 658 F. 3d 388, 398–401 (CA4 2011) (same); Presbyterian
Church of Sudan v. Talisman Energy, Inc., 582 F. 3d 244,
257–259 (CA2 2009) (same), with Doe VIII v. Exxon Mobil
Corp., 654 F. 3d 11, 32–39 (CADC 2011) (aider and abettor
need only act knowingly), vacated, 527 Fed. Appx. 7 (CADC
2013); Restatement (Third) of Torts: Liability for Economic
Harm § 28 (2018) (same); Restatement (Second) of Torts § 876
(1977) (same). A decision begins to take on the favor of
an advisory opinion when it is necessary to make so many
important assumptions in order to reach the question that is
actually resolved.
To be sure, Part III of Justice Thomas's opinion and Part
II of Justice Gorsuch's opinion make strong arguments
that federal courts should never recognize new claims under
the ATS. But this issue was not raised by petitioners' coun-
sel, and I would not reach it here.
For these reasons, I would reject petitioners' argument
on the question of corporate immunity, vacate the judgment
below, and remand these cases for further proceedings in the
District Court.