Looking the Other Way

The Supreme Court prefers not to talk about human rights.
The U.S. Supreme Court, May 13, 2021 (CNS photo/Andrew Kelly, Reuters)

Human rights were a big issue in the U.S. Supreme Court’s October 2020 term, which ended at the beginning of July. But unless you keep close tabs on the court’s docket, you could be forgiven for failing to notice this. This is partly because what the court did not say about human rights was just as important as what it did say.

How one talks about human rights matters, especially when one is a Supreme Court justice. Trivializing the language that victims of human-rights abuses use to describe their experience robs them of their dignity, while couching what is really at stake in euphemism suggests to society at large that these are problems we need not concern ourselves with. Two important decisions this term highlight the power of the court’s language to mask the grave injustices.

One of these was the court’s decision in the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I. The core issue in these cases was whether under the Alien Tort Statute (ATS) U.S. corporations can be held to account in federal court for human-rights abuses they commit abroad. The court remanded the case to the lower courts for determination of whether the ATS applies extraterritorially in this matter, thus leaving the question of domestic corporate liability for another day. It’s the manner in which they did so that should give us pause.

The notably cold language of the court’s majority opinion fails to acknowledge that the Nestlé and Cargill cases are about claims of child slavery related to cocoa production in Ivory Coast, a point wholly uncontested by the parties. The decision simply brushes past the fact that we are talking about whether, in the twenty-first century, a slave has recourse to our court system for a claim against an American corporation that has aided and abetted his bondage. The majority’s narrow focus on jurisdiction and procedure should not distract us—as it seems to have distracted them—from the fact that Nestlé and Cargill are all about former slaves suing their captors.

The notably cold language of the court’s majority opinion fails to acknowledge that the Nestlé and Cargill cases are about claims of child slavery...a point wholly uncontested by the parties.

According to the International Labour Organization (ILO) more than 21 million people around the world are held against their will in some form of slavery. And some forms of slavery are still prevalent in high-GDP countries, belying the myth that slaves are found only in poor countries. Child slavery, in particular, is not just something that happens in distant countries to people with no connection to the United States. The Nestlé and Cargill cases were brought to court here in this country because the victims allege that those companies colluded in their bondage from their offices in this country in order to increase their profits. In short, much more is at stake than whether Congress intended for the ATS to apply extraterritorially.

Nor was this the only case from this term where the Supreme Court seemed disturbing nonchalant about a violation of human rights. Earlier in the year, in Federal Republic of Germany v. Philipp, the court ruled in favor of Germany on claims belonging to the heirs of Jewish art dealers who were forced to sell medieval Christian relics to the Nazis. The claimants’ argument was that the forced sale of art, at the behest of Hermann Göring himself, was a part of a campaign of genocide. But the court insisted that the matter before it was simply one of property rights. It held that under the Foreign Sovereign Immunities Act (FSIA), Germany cannot be held to account in U.S. courts for expropriating the property of its own nationals. The court simply dismissed the point raised by the claimants that, at the time of the sale, Jews were by law no longer German citizens.

Earlier this year UN Secretary-General António Guterres argued that the way to reaffirm and celebrate the dignity of survivors of gross human-rights violations is by acknowledging their experiences. The same idea can be found in Catholic social teaching, and has been particularly developed by Pope Francis. In Fratelli tutti, Francis reflects on what words like “democracy,” “freedom,” and “justice” mean today. According to the pope, how we define these words shapes our view of human rights and the importance we place on protecting those rights. In many cases, Francis says, those words “have been bent and shaped to serve as tools for domination, as meaningless tags that can be used to justify any action.” He asks, “What does this tell us about the equality of rights grounded in innate human dignity?” The answer, he finds, is that “in practice, human rights are not equal for all.” This is mainly because we see those who live beyond the borders of our own country as not like us—and not equal to us. Behind the walls we construct for our self-preservation, “the outside world ceases to exist,” and those beyond the walls are “no longer considered human beings possessed of an inalienable dignity.” Those others, according to the pope, simply become “them.”

The Supreme Court’s jurisprudence this term on human rights is infused with this culture of walls: on one side, those privileged enough to live in the United States and have access to its legal system; on the other side, everyone else. Of course, this culture of walls is by no means limited to the court. It is also evident in our politics and culture. Too many of us no longer ask any of the big philosophical questions underlying our legal system—questions like “What is justice, and who should have access to it?” For us to ask such questions would be to remind ourselves of the ordinary people who depend on the answers. As Cathleen Kaveny argues in a 2009 Commonweal column (“Rules Are Not Enough”), our legal system functions best when everyone, including judges, approaches it with empathy. Without empathy, Kaveny writes, “a judge can hide behind rules to escape responsibility for the harm he or she is causing to other human beings.”

In Fratelli tutti Pope Francis invites us to envision new possibilities for the law, possibilities based on social friendship and universal fraternity. This most recent term at the Supreme Court reminds us how far we remain from making those possibilities a reality.

Fernando C. Saldivar, SJ, is a Jesuit Scholastic of the USA West province currently working as the Global Policy and Advocacy Officer for the Jesuit Justice and Ecology Network Africa (JENA) in Nairobi, Kenya.

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