Breyer does not defer to parochial U.S. Government because DOJ did not consult with foreign nations

June 20th, 2016

This may be the most Breyer concurring opinion I’ve ever read, from RJR Nabisco, Inc. v. European Community:

Unlike the Court, I cannot accept as controlling the Government’s argument as amicus curiae that “[a]llowing recovery for foreign injuries in a civil RICO action . . . presents the . . . danger of international friction.” Ante, at 21. The Government does not provide examples, nor apparently has it consulted with foreign governments on the matter. See Tr. of Oral Arg. 26 (“[T]o my knowledge, [the Government] didn’t have those consultations” with foreign states concerning this case). By way of contrast, the European Community and 26 of its member states tell us “that the complaint in this case, which alleges that American corporations engaged in a pattern of racketeer- ing activity that caused injury to respondents’ businesses and property, comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Brief for Respondents 52– 53; see also Tr. of Oral Arg. 31 (calling the European Union’s “vett[ing] exercise” concerning this case “compre- hensiv[e]”). In these circumstances, and for the reasons given by JUSTICE GINSBURG, see ante, at 7–8, I would not place controlling weight on the Government’s contrary view.

Do you see what’s going on? Because the Solicitor General could not represent the United States actually checked with foreign nations about the issue of extraterritoriality, and those foreign nations told the Court that the SG was wrong about their views, Breyer would not defer to the United States on a question of foreign relations! It’s come to this: the Supreme Court is second-guessing the State Department’s foreign policy interests because foreign nations tell the Supreme Court otherwise. Where’s Justice Scalia when you need him.

Three other bits about RJR Nabisco.

First, Justice Sotomayor was recused because she previously ruled on this case on the Second Circuit. The Court split 4-3 on the second question of whether a domestic-injury requirement should be read into RICO’s extraterritoriality reach. Presumably, if Sotomayor voted the same way she did as a Circuit Judge, the Court would have split 4-4 on this question. Now we get to determine whether a 4-3 decision is precedential. I do not know the answer to this question, but if other questions present the same issue are in the pipeline, where there are no recusals, this case may quickly go the other way.

Second, Justice Alito referenced then-Judge Sotomayor’s decision:

4 At an earlier stage of respondents’ litigation against RJR, the Sec­ ond Circuit “held that the revenue rule barred the foreign sovereigns’ civil claims for recovery of lost tax revenue and law enforcement costs.” European Community v. RJR Nabisco, Inc., 424 F. 3d 175, 178 (2005) (Sotomayor, J.), cert. denied, 546 U. S. 1092 (2006). It is unclear why respondents subsequently included these alleged injuries in their present complaint; they do not ask us to disturb or distinguish the Second Circuit’s holding that such injuries are not cognizable. We express no opinion on the matter. Cf. Pasquantino v. United States, 544 U. S. 349, 355, n. 1 (2005).

Third, Justice Ginsburg’s dissent referred to her colleague’s “sound judgment.”

I would resist reading into §1964(c) a domestic-injury requirement Congress did not prescribe. Instead, I would affirm the Second Circuit’s sound judgment:

“To establish a compensable injury under §1964(c), a private plaintiff must show that (1) the defendant ‘en- gage[d] in a pattern of racketeering activity in a man- ner forbidden by’ §1962, and (2) that these ‘racketeer- ing activities’ were the proximate cause of some injury to the plaintiff ’s business or property.” 764 F. 3d, at 151 (quoting Sedima, 473 U. S., at 495; Holmes, 503 U. S., at 268)).

Because the Court overturns that judgment, I dissent.