On 23 June 2026, the US Supreme Court reversed the Court of Appeals 2023 decision that had allowed proceedings against Cisco System under the Alien Tort Statute (ATS) to proceed. The Court of Appeals’ decision was a ray of light for corporate accountability coming through an almost closed door after several Supreme Court’s rulings issued over the last two decades drastically limiting the possibility to use the ATS. The Supreme Court’s new ruling shuts the door permanently.
During this 15 year-long trial, practitioners of Falun Gong, a Chinese religious movement, who were (or their family members) victims of human rights abuses including torture, arbitrary detention, forced labour, extrajudicial killing and forced disappearance committed by the Chinese Communist Party and Chinese government officials claimed that such persecution was enabled by technological assistance of Cisco System, a US tech company which designed, implemented and helped to maintain a surveillance and internal security network (the Golden Shield system) for Chinese officials, greatly enhancing their capacity to identify Falun Gong practitioners and persecute them. In 2011, claimants sued Cisco for aiding and abetting Chinese officials in violation of the ATS.
“What Sosa made difficult, subsequent legal developments have made impossible”
The Alien Tort Statute grants federal courts 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.” Enacted in 1789 to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international law violations in cases where the absence of such remedy might provoke foreign nations to hold the US accountable, the ATS laid mostly dormant after its enactment and its precise contours remained largely undefined for nearly two hundred years.
In 2004, the Supreme Court interpreted the ATS for the first time in the Sosa v Alvarez Machain case, setting a twofold test for the recognition of new causes of action under the Statute. First, plaintiffs must demonstrate that the claim has a “definite content and acceptance among civilised nations” comparable to the causes of action recognised when the ATS was enacted (violation of safe conducts, infringement of the rights of ambassadors and piracy – known as the Blackstone three). Second, judges must consider foreign policy consequences and separation of power concerns before recognising a cause of action or allowing a particular case to proceed. Justice Scalia (opinion concurring in part and concurring in judgment) disagreed, considering that “none of the exceptions to the general rule against finding substantive lawmaking power in a jurisdictional grant apply”.
In the Cisco case, the Supreme Court argued that since Sosa, various of its members (Justices Thomas, Gorsuch, Kavanaugh and Alito) have “thoughtfully explained the problems with Sosa’s openness – no matter how limited – to judicially created causes of action under the ATS”, and that “these opinions highlight the great difficulty of satisfying Sosa’s second step under our modern separation of power precedent”; these criticisms echoing Justice Scalia’s opinion.
Justice Gorsuch in Jesner (opinion concurring in part and concurring in judgment) argued that “The context in which any Sosa discretion would be exercised confirms the wisdom of restraint. Sosa acknowledged that any decision to create a new cause of action would “inevitably [involve] an element of judgment about the practical consequences” that might follow. But because the point of such a claim would be to vindicate “a norm of international character”, those “practical consequences” would likely involve questions of foreign affairs and national security, matters that implicate neither judicial expertise nor authority.”
Justice Thomas joined by Justices Gorsuch and Kavanaugh in Nestlé argued that “Although specific 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. 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.” Justice Gorsuch (concurring) noted “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.” Justice Alito (dissenting) noted that “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.”
“We close the door that Sosa cracked to judicially created ATS liability”
In the Cisco case, against all odds, the Court of Appeals had found that it passed the Sosa test: aiding and abetting liability was sufficiently definite and universal to be a viable form of liability under the ATS and neither foreign relations concerns nor deference to Congress called for the decline to recognise aiding and abetting liability.
When analysing the Court of Appeals’ reasoning in light with Sosa’s second step, the Supreme Court noted that “ATS cases by their nature implicate foreign policy. It is thus difficult to think of a case in which a court “might safely conclude” that a new ATS cause of action would not have detrimental foreign policy consequences. Even suits against American defendants (like this one against Cisco) generally require a court to examine allegations of heinous acts committed by foreign nations or individuals.” The Supreme Court also considered that “judicially created causes of action offend the separation of powers in almost every circumstance. In the ATS context, there will always be at least a “single sound reason” to conclude that Congress might not want the judiciary to take the lead.”
The Supreme Court concluded that “Sosa was overly optimistic in its prediction that there might be a narrow class of cases in which courts may create ATS actions without infringing on the prerogatives of the political branches. In truth, this class is a null set [emphasis added].”, permanently closing the door for corporate accountability under the ATS.
“The majority turns down a different road, one paved not with the opinions of the Court, which are the law, but with the opinions of individuals Justices, which are not”
Justice Sotomayor (with whom Justice Kagan and Justice Jackson joined) strongly dissented the Supreme Court’s majority decision on the ATS. Indeed, she considered the “majority casts aside Sosa’s two step framework altogether.”
By recalling that the Blackstone three are not in the ATS’s text but were implied causes of action drawn from international law, Justice Sotomayor stressed the inconsistency in refusing to allow others similarly drawn from that body of law. She noted opinions of early American statemen such as Secretary of State Thomas Jefferson confirming that the ATS was understood in the late 18th century to allow civil suits for violations of international law even without any express causes of action and that the ATS was not limited to the Blackstone three.
Justice Sotomayer clearly stated that by justifying the refusal to recognise new implied causes of action with the opinions of individual Justices instead of opinions of the Court, the majority failed to apply the law as “these five opinions [Scalia in Sosa, Gorsuch in Jesner, Thomas, Gorsuch and Alito in Nestle], however, are not, and never have been, the law” as they did not garner a majority. Justice Sotomayer recalled that the Sosa majority dismissed Justice Scalia’s opinion to stop at the Blackstone three and that “nor did any of the subsequent opinions garner a majority, as the Court in each case rejected liability under the ATS on narrower grounds than the separate writings advocated (rejecting extraterritorial application of the ATS and holding that Sosa’s second step counseled against extending ATS liability to foreign corporations). To say something three times (or five) does not make it true.”
Regarding the claim made by the majority that ATS suits by their nature implicate foreign policy, Justice Sotomayer replied that Sosa explained that foreign-policy concerns can arise from the failure to provide remedies for international law violations just as they can arise from the imposition of liability for such violations. She noted that “the founding generation was deeply concerned with foreign tensions resulting from States’ failures to provide remedies for international law violations, especially when an American defendant was involved”. She added that today, too, foreign States have sometimes filed briefs expressing support for ongoing ATS cases. Therefore, “given that there are strong foreign-policy interests on both sides of the scale, Sosa correctly rejected the argument that fear of “adverse foreign policy consequences” should categorically preclude judicial involvement in this area”.
Particularly, Justice Sotomayor pointed out that both executive and legislative branches have already consistently condemned China’s treatment of Falun Gong members (which was confirmed in this very case by the Solicitor General) and have sanctioned Chinese officials for gross violations of human rights, including particularly severe violations of religious freedom. Therefore, “given that both political branches have so publicly and directly condemned China’s persecution of Falun Gong members, it strains credulity to say that allowing a private suit against an American company to proceed would meaningfully change the state of relations between the United States and China [emphasis added].” Justice Sotomayor also noted that neither China nor any Chinese entity was a party to the case and that China has not opposed to it through the filing of a brief just as it did in a previous ATS case involving China.
As for the majority’s view that the power to create causes of action belongs to Congress, Justice Sotomayer explained that Sosa fully addressed this matter by considering it would be unreasonable to fault Congress for failing in the 18th century to anticipate the prevailing legal fashion two centuries down the line and to calcify a statute Congress intended to be flexible. Therefore, Sosa found that courts may find implied causes of action provided they do so with great caution and do not recognise causes dissimilar to the Blackstone three.
“How low this Court’s respect for stare decisis has sunk”
According to Justice Sotomayer, through its decision, the majority overturned Sosa without a special justification required under the rule of stare decisis (adherence to precedent), “a foundation stone of the rule of law”. “The majority’s apparent disregard for stare decisis is particularly lamentable here because this Court has long held that stare decisis has “special force” as to decisions interpreting congressional statutes. That is because Congress, not this Court, has the primary responsibility to “correct any mistake[s]” in this Court’s statutory decisions.” Considering this, she pointed out that following Sosa, nor Congress amended the ATS or passed new legislation undercutting Sosa’s holding.
Justice Sotomayer also addressed the other circumstance in which sometimes the Court will overturn a precedent: if its standard has proven unworkable. While Cisco argued that Sosa and the ATS have allowed causes of action to proliferate, ensnaring defendants and courts in litigation, she dismissed the defendant’s claim by explaining that the Court’s cases narrowing ATS liability have had a significant impact on the decreased number of ATS cases filed.
“The Court slams the doors in the faces of victims of horrific mistreatment”
When concluded her opinion, Justice Sotomayer recalled the concrete consequences of the majority’s opinion foreclosing future reliance on Sosa and shutting the courthouse doors to almost any claimed violation of international law under the ATS. “That includes torture. It includes forced labour. It also includes perhaps the most universally condemned crime in the modern era: genocide. As to each of these offenses, as to each of these enemies of mankind, the majority decides that there is simply no way that a suit could possibly proceed without offending Congress [emphasis added].”
Conclusion
After two decades of ruling drastically limiting the possibility to use the ATS, this proceeding was the ultimate hope to see a case passing the Sosa test and lead to corporate accountability.
By confusing individual opinions of individual Justices with the opinion of the Court, the Supreme Court overturned Sosa rendering the ATS a toothless relic that companies can ignore as they please. Instead of considering the fact that both executive and legislative branches have already consistently condemned China’s treatment of Falun Gong members, the majority persisted in claiming that pursuing any case under the ATS would negatively impact foreign policy. All of this can only be deplored.