A Thriving Atrocities Practice
· 1 h 15 min · S6 E29
Episode A Thriving Atrocities Practice
After following up on Justice Alito's summer interview, the new birthright-citizenship executive orders, and the Court's record-low approval numbers, we devote the episode to Cisco Systems v. Doe, the Falun Gong surveillance case that closes the door Sosa v. Alvarez-Machain left open for new Alien Tort Statute claims. We try to build a theory of the ATS from first principles — Section 9 of the Judiciary Act of 1789, the law of nations, and the Marbois affair — before running through two decades of the Court narrowing the statute. Then we ask what to make of "door closing" as a phenomenon, from Edwards v. Vannoy to Rucho, and whether the Court would really be stuck if the perfect ATS unicorn finally showed up. Along the way: whether Justice Alito is an I-95 or an Amtrak guy, the seven-case October calendar led by Suncor, Rooker anti-Feldmanism, and a Phoenix bar band called the Blackstone Three.
Highlights
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[00:00:21] Opening: 29 episodes makes a record-breaking season, and the secret to sub-4-hour recording sessions
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[00:02:28] Justice Alito's WSJ interview with James Taranto: "Obviously I'm here for another term," the vultures, and his high school English teacher's psychoanalysis
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[00:06:27] How Will became a libertarian: Mr. Flannery, Lexis news alerts for "Ayn Rand," and golfer David Duval
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[00:09:48] Still no action on the mail-in voting applications; a White House ballroom emergency application expected any day
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[00:11:15] No rehearing petition in Trump v. Barbara — instead, new executive orders probing the decision's edges
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[00:15:32] The October calendar: only 7 cases, starting with Suncor — "conservative intuitions in search of a constitutional clause"
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[00:17:04] Mailbag: Rooker anti-Feldmanism via Lance v. Dennis, and Michael Rosman on whether sex-segregated sports are really "equal opportunity"
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[00:20:32] Gallup has the Court at 33% approval, a record low — the maximally anti-legitimacy strategy
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[00:22:35] The main event: Cisco Systems v. Doe — an anonymous person versus a faceless corporation
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[00:23:16] ATS first principles: Section 9 of the Judiciary Act of 1789, the law of nations as brooding omnipresence, and the Marbois affair
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[00:37:27] The 1980 revival, Sosa v. Alvarez-Machain, and the door Justice Souter left ajar
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[00:42:45] Two decades of narrowing: Kiobel, Jesner, Nestlé — and Will's brush with a thriving atrocities practice
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[00:47:33] Cisco closes the door; the Edwards v. Vannoy parallel, and whether door closing is ever dicta
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[00:52:33] Door closing as a genre: Vieth v. Jubelirer, Rucho — a Green Bag piece for Richard Re
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[00:56:36] What about pirates? The Blackstone 3 — the doctrine, and the Phoenix bar band
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[01:00:18] Implied causes of action, the slow death of Bivens, and the Ex parte Young irony after Trump v. Cook
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[01:05:19] Scoring the opinion: a win for the Bradley–Goldsmith "Erie algorithm" — or selective originalism?
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[01:13:33] Sign-off: rate and review — and if we go quiet, Will has been taken by pirates
Relevant links
Cases
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Cisco Systems, Inc. v. Doe I — slip opinion
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Trump v. Barbara — the birthright-citizenship decision the new executive orders are testing
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Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County — the OT26 opener
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Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
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Edwards v. Vannoy, 593 U.S. 255 (2021) — slip opinion
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Lance v. Dennis, 546 U.S. 459 (2006) (per curiam) — the Stevens "Rooker good, Feldman bad" dissent
Commentary & articles
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CNN on the Alito interview — coverage of James Taranto's Wall Street Journal interview
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Gallup, "Supreme Court Job Approval Slumps to Record Low"
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Jonathan Adler, "Amicus Brief in Suncor Energy v. County Commissioners of Boulder County" — the solo plaintiffs-side amicus
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Oona A. Hathaway et al., "Has the Alien Tort Statute Made a Difference?," 107 Cornell L. Rev. (2022) — the settlements study cited in Cisco footnote 2
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Carlos M.…
Links in the notes 16
- https://www.scotusblog.com/cases/cisco-systems-inc-v-doe-i/
- https://supreme.justia.com/cases/federal/us/542/692/
- https://supreme.justia.com/cases/federal/us/593/19-5807/
- https://www.scotusblog.com/cases/suncor-energy-inc-v-county-commissioners-of-boulder-county/
- https://www.supremecourt.gov/opinions/25pdf/24-856_kjfm.pdf
- https://www.scotusblog.com/cases/trump-v-barbara/
- https://www.supremecourt.gov/opinions/20pdf/19-5807_086c.pdf
- https://supreme.justia.com/cases/federal/us/546/05-555/percuriam.pdf
- https://www.cnn.com/2026/08/07/politics/justice-samuel-alito-says-hes-not-retiring-for-another-term
- https://news.gallup.com/poll/713096/supreme-court-job-approval-slumps-record-low.aspx
- https://reason.com/volokh/2026/08/03/amicus-brief-in-suncor-energy-v-county-commissioners-of-boulder-county/
- https://publications.lawschool.cornell.edu/lawreview/2022/10/06/has-the-alien-tort-statute-made-a-difference-a-historical-empirical-and-normative-assessment/
- https://scholarship.law.upenn.edu/penn_law_review/vol161/iss2/3/
- https://ndlawreview.org/getting-into-equity/
- https://dividedargument.com/episode/separation-of-powers-police
- https://www.theblackstonethree.com/
Transcript
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