Fingerprints of Justice Alito All Over Kiobel Reargument Order: Citizens United Deja Vu

Yesterday the Supreme Court ordered reargument on a broader question in the Kiobel case raising questions about corporate liability under the Alien Tort Statute.

Court observers saw a similarity to the Court’s reargument order in Citizens United (which made a potentially minor campaign finance case into the most controversial case of the Roberts Court so far).   But what stood to me in the media coverage is that the reargument order appears tied directly to questions raised most forcefully by Justice Alito at the oral argument.

In a forthcoming Emory Law Journal piece, I make the following observations about Justice Alito, reargument, and reconsideration of precedent:

Despite Justice Alito’s invitation in WRTL II, he also has consistently expressed the belief that courts should overrule precedent only when there is an explicit request, full briefing, and oral argument on the question. In Randall v. Sorrell, a case challenging a number of Vermont’s campaign finance laws, Justice Alito again filed a very short concurrence to a controlling (non-majority) opinion. There, he noted that a party arguing for the overruling of a portion of Buckley v. Valeo had made the overruling argument only briefly in 99 pages of briefing. “Whether or not a case can be made for reexamining Buckley in whole or in part, what matters is that respondents do not do so here, and so I think it
unnecessary to reach the issue.”

He made a similar point in his majority opinion last term in NASA v. Nelson. There, the Court declined to decide whether the Constitution contains a right to “informational privacy.” Instead, the Court assumed the right existed for the sake of argument, and then held that the right, if it existed, was not violated in this particular case. Over a strong concurrence from Justice Scalia urging that the Court decide the constitutional question, Justice Alito responded that “[i]t is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had ittle notice that the matter might be decided.”

Justice Alito’s desire to invite full briefing when overruling precedent is a possibility was likely on display in Citizens United itself. The Court at first
deferred deciding the case after it was argued in March 2009. Instead, it issued an order in June 2009 setting the case for supplemental briefing and reargument on the express question whether Austin and McConnell should be overruled. It then overruled those cases in an opinion issued in January 2010.

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