The Supreme Court decided two cases on Tuesday that, at least at first glance, have nothing to do with one another. One involves the People’s Republic of China, Silicon Valley, and the Judiciary Act of 1789. The other involves Louisiana prisons, Rastafarian spiritual beliefs, and contract law. In both cases, however, are two shared and recurring impulses from the court’s conservative majority: a nearly boundless contempt for Congress as an institution.
The first case, Cisco Systems v. Doe, involves a group of plaintiffs who claim that the Chinese government has persecuted them for their religious beliefs. They filed lawsuits against Cisco, a major U.S. tech company, alleging that the company sold surveillance software to the Chinese government that was later used to surveil, torture, and otherwise abuse them.
In theory, no federal law is any more “constitutional” than the other. But laws from the First Congress tend to be seen as indicative of how the Constitution’s Framers intended the government to function. Among the early laws they passed was the Alien Tort Statute, or ATS, which allows federal courts to hear “any civil action” against a foreign national for any “tort” that was “committed in violation of the law of nations or a treaty of the United States.”
Congress enacted the ATS as part of the Judiciary Act of 1789—the first federal law it enacted to structure the federal courts. Though it was only occasionally invoked in those courts until the 1980s, one might think that its founding-era pedigree might entitle it to a little more respect. Apparently not. The modern-day aversion to this longstanding law was on display in the 2004 case Sosa v. Alvarez-Machain, a complex case about whether a man arrested by federal agents on drug charges could sue a Mexican national for temporarily apprehending him.
In his majority opinion, Justice David Souter wrote that the ATS “was originally understood to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority.” Those norms included “offenses against ambassadors, violation of safe conducts, and piracy.” Accordingly, he rejected Sosa’s more novel claim against Alvarez-Machain.
Does this mean that only that “small number” of claims described by Souter could be pursued under the ATS? Souter said no. He left open the possibility that the high court might recognize future implied claims beyond the more traditional ones. Justice Antonin Scalia took the opposite approach. He wrote in a partially dissenting opinion that he disagreed with the majority’s “reservation of a discretionary power in the federal judiciary to create causes of action for the enforcement of international-law-based norms.”
Scalia argued that this approach would “amount to judicial lawmaking” that the federal courts are “neither authorized nor suited to perform.” Souter, on the other hand, took a more deferential approach to the framework that Congress had created in the ATS. He noted that Congress could correct the court’s work through its own legislative powers by amending the ATS itself or adding new constraints to it through separate legislation.
“While we agree with Justice Scalia to the point that we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations, nothing Congress has done is a reason for us to shut the door to the law of nations entirely,” Souter explained. “It is enough to say that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field) just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such.”
The court’s conservative majority was never satisfied with that ruling. In case after case over the past 20 years, the justices repeatedly narrowed the scope of ATS claims, including by ruling that it could not be used to sue foreign corporations and by holding that domestic corporations can’t be sued for “general corporate activity” linked to human-rights abuses. In Cisco, Justice Amy Coney Barrett finally transformed Scalia’s dissent in Sosa into the court’s new majority opinion.
“Since Sosa was decided, we have firmly committed to the view that judicially created causes of action offend the separation of powers in almost every circumstance,” Barrett wrote. “As a result, we have virtually eliminated the practice of fashioning them.” She finished the job by “clos[ing] the door that Sosa cracked to judicially created ATS liability.” The Supreme Court’s rulings on these matters are often described as “closing the courthouse door” on wronged plaintiffs, but rarely by the majority itself.
Justice Sonia Sotomayor, writing in dissent, chastised the majority for its transparent about-face. “The Court nonetheless closes the courthouse doors not just to [the plaintiffs], but to virtually every future litigant seeking redress for a violation of international law under the ATS,” she wrote. “It thus overrules Sosa, without even acknowledging that it is doing so. Today’s decision marks yet another low point in this Court’s esteem for its precedents.”
Okay, you might think, maybe that’s a defensible reading of an archaic founding-era law. Perhaps there is good reason not to lean so heavily on a 18th-century statute in novel contexts. So then, what happens when Congress does provide unambiguous guidance on how to sue someone? Landor v. Louisiana Department of Corrections shows that even this is not enough to satisfy the justices.
Again, it is worth tracing the history of the underlying law in question. In 1990, the Supreme Court held in Employment Division v. Smith that litigants could not invoke the First Amendment’s Free Exercise Clause to challenge what the court described as “neutral laws of general applicability,” meaning general laws that applied to all people with few or no exceptions. Congress and President Bill Clinton responded to the perceived curtailment of religious freedom by enacting the Religious Freedom Restoration Act, or RFRA.
RFRA originally required laws and policies that infringed on free-exercise grounds to meet the highest threshold of judicial scrutiny. In 1997, however, the Supreme Court ruled that Congress could not apply RFRA to actions by state and local governments for federalism reasons. In response, Congress enacted the Religious Land Use and Institutionalized Persons Act, or RLUIPA, in 2000 that sought to apply RFRA protections to the states on narrower grounds.
One of those contexts was state prison systems. Under RLUIPA, states that accept funds from Congress for their prisons must also allow private plaintiffs to file Free Exercise Clause lawsuits against them and (more importantly, in this particular case) their employees. This framework sought to place Congress’s goals on firmer constitutional footing—namely, Congress’s Spending Clause power—even though its overall impact would be more limited than at the federal level.
It would be hard to find a more clear-cut violation of the Free Exercise Clause than Damon Landor’s treatment by Louisiana correctional officials in 2020. Landor, a Rastafarian, grew out his hair into lengthy dreadlocks in keeping with the practices of his faith. Long hair is generally disallowed in prison systems for safety and hygiene reasons, but Landor had previously obtained exemptions on religious grounds.
When he was transferred to a new facility, Landor told the prison personnel that his hair was kept long for religious reasons. He also provided them with a copy of a 2017 ruling by the Fifth Circuit Court of Appeals, which has jurisdiction over Louisiana, that held that it would be a RLUIPA violation for state prison officials to cut a Rastafarian’s hair. Nonetheless, prison officials threw the ruling in the trash and shaved Landor’s head.
In response, Landor sued both the Louisiana Department of Corrections, or LDOC, as well as the guards themselves in their personal capacity under RLUIPA. The Fifth Circuit Court of Appeals had previously held that RLUIPA could not be used to sue prison officials in their personal capacity. In 2020, however, the Supreme Court ruled in Tanzin v. Tanvir that plaintiffs could bring those claims against federal officials under RFRA. Landor now sought to apply that reasoning to RLUIPA.
Justice Neil Gorsuch, writing for the court, declined to do so. He framed the dispute not as a question of religious freedom, but of Congress’s power to impose conditions on federal funds. The decision is an unusually muddled one for Gorsuch. He insisted that Congress’s choice to provide federal funds to Louisiana so long as the state abides by certain conditions is a contract of sorts. While Congress can impose conditions on those funds for the states, Gorsuch argued, it cannot contractually bind people—in this case, the prison officials—who didn’t consent to the agreement in the first place.
This reasoning is too clever by half. The Louisiana Department of Corrections is not some sort of cosmic entity or demiurge. It does not independently exist in a metaphysical sense despite its legal personality. It is, at its root, a group of people in buildings who sit behind desks and walk down hallways and occasionally violate people’s constitutional rights. Gorsuch nonetheless hypothesized about ways that Congress could, in theory, rewrite the law to properly bind those employees in a private capacity.
“For example, Congress could have said that, as a condition of federal funding to LDOC, its officers had to agree to enter separate contracts with the federal government consenting to answer suits under RLUIPA,” he wrote. The officers arguably fulfilled that condition by agreeing to work at the Louisiana Department of Corrections in the first place, which is supposedly still bound by RLUIPA’s conditions.
Justice Ketanji Brown Jackson, who dissented with the court’s other two liberal members, also argued that the majority’s reading of the Spending Clause upended decades of precedent about congressional powers. “Today’s decision magically transforms a federal statute into an invitation to be accepted or declined, deemed binding only if each particular defendant has explicitly agreed to be penalized,” she explained. “No matter that laws, as opposed to contracts, don’t ordinarily work this way.”
At the root of Gorsuch’s opinion, she hinted, was a fundamental lack of respect for Congress as an institution. “In the end, the Court reduces some of Congress’s greatest legislative achievements—federal laws that secure civil rights, environmental stability, healthcare, and more—to nothing more than the wheelings-and-dealings of an especially wealthy private party,” she warned.
Gorsuch did not forthrightly address the Tanzin argument, apparently because his reductive Spending Clause interpretation made it unnecessary to grapple with. Nonetheless, Jackson argued that Tanzin’s reasoning applied with “even more force” to RLUIPA because damages would often be the “only form of relief available” to prisoners when their religious freedoms are violated.
“The Prison Litigation Reform Act’s exhaustion requirement and strict limitations on injunctive relief in prisons, coupled with States’ ability to transfer prisoners and thereby moot claims for injunctive relief, mean that withholding a damages remedy will often leave prisoners with no remedy at all,” she explained. A right with no remedy, it goes without saying, is not really a right at all.
For most of the 20th century, the Supreme Court confined itself to interpreting federal law instead of rewriting it. Thanks to the conservative legal movement, that posture has changed. The court’s Republican appointees have developed a wide array of tools to second-guess Congress, sometimes even under the cynical guise of defending its prerogatives.
Under the major-questions doctrine, for example, the Supreme Court has claimed the power to strike down federal rules and regulations if the statute they rely upon does not “speak clearly” on the issue in question. What is often framed by the conservatives justices as a check on executive-branch overreach is actually a curtailment of Congress’s legislative powers. By denying it the power to pass broadly worded legislation, the court is denying it the ability to legislate for unforeseen circumstances.
The justices are also either ignorant of, or hostile to, the basic nature of the legislative process. Congress typically enacts legislation after a long period of debate, consideration, and jockeying between various factions—from groups and movements that can be partisan, civic, business, special-interest, activist, and so on. Entire election cycles can hinge on a specific bill, as the 2010 and 2012 elections did for the Affordable Care Act.
This democratic process receives no deference or validation from the high court, either implicitly or explicitly. Thus, the work of years of activism, negotiation, and compromise can be undone with a few friend-of-the-court briefs and the right five justices on the court. When the Supreme Court struck down the Voting Rights Act’s preclearance formula in 2013, it invited Congress to simply draft a new one—knowing full well that congressional Republicans would never agree to it.
When the justices don’t want to overturn a law, they simply rewrite it. In VRA decisions in 2021 and earlier this year, the court’s conservatives added atextual limits on the law’s protections under the guise of interpreting it. Baseless fears of voter fraud can be used by states to evade challenges to voting restrictions; states’ rights to partisan gerrymander can be used to defeat racial-gerrymandering lawsuits. Thirteen years later after Shelby County v. Holder, with the rest of the VRA now in ruins, it is clear that the court wouldn’t have approved a new preclearance formula anyway—it wouldn’t have mattered how “clearly” Congress managed to speak on the matter.
“Heads I win, tails you lose,” has become this court’s judicial maxim. Tuesday’s rulings underscore how far these impulses will go. It does not matter if Congress broadly intends for courts to hear civil lawsuits over human-rights violations. Nor does it matter if Congress narrowly seeks to ensure that Americans whose federal constitutional rights are violated via federal funds can seek redress in federal court. Whatever Congress does, the Supreme Court will happily insert its own judgment in favor of that of the people’s elected representatives.
