One little-known particularly troubling court decision Supreme Court nominee Brett Kavanaugh weighed in on was in favor of oil giant ExxonMobil in a case regarding the company’s treatment of Indonesian villagers.
The case, known as John Doe VIII v. ExxonMobil Corporation, was brought by 15 Indonesians who argued that the oil giant should face accountability for various violations of natives’ human rights at the hands of the company’s security forces between 2000 and 2001. While two of the judges on the U.S. Court of Appeals for the District of Columbia Circuit — Judith Rogers and David Tatel — ruled in favor of the villagers, Brett Kavanaugh took ExxonMobil’s side.
Villagers’ accusations against the company are serious. The natives of Indonesia’s oil-rich province of Aceh say they were “beaten, burned, shocked with cattle prods, kicked and subjected to other forms of brutality and cruelty” at the hands of ExxonMobil’s security forces hired to guard drilling operations:
“Plaintiffs-appellants claim that Exxon or its agents, by decisions made in the United States, and at its Aceh plant, ‘committed acts that had the intent and the effect of grossly humiliating and debasing’ either them or their deceased husbands by ‘forcing them to act against their will and conscience, inciting fear and anguish, and breaking their physical and/or moral resistance’ by actions that constitute ‘inhuman or degrading treatment in violation of the law of nations.’ “
Judges Rogers and Tatel ruled that villagers had proper standing to bring legal action against ExxonMobil under the Alien Tort Statute, which could have far-reaching effects on any American company doing business overseas.
Judge Kavanaugh was the only dissenter, arguing that ExxonMobil was not liable for actions committed by the company’s hired security forces. However, his colleagues disagreed with him, saying that the company had the authority to “control and direct” security personnel as they were hired specifically to guard the company’s Aceh operations. Rogers and Tatel also said that Kavanaugh blatantly disregarded long-standing Supreme Court precedent:
“The dissent’s objection to corporate liability is based on a misstatement of the definition of customary international law and of Supreme Court precedent, and disregards both a fundamental distinction between causes of action based on conduct that violates the law of nations or treaties and the remedy under domestic law, and a source of international law,” Rogers wrote in the court’s official opinion.
Despite the DC Circuit’s 2011 ruling, Doe v. ExxonMobil could still potentially make its way to the U.S. Supreme Court in the future given lower courts’ conflicting opinions on the liability of American corporations overseas. If confirmed by the full senate, Kavanaugh would replace outgoing Justice Anthony Kennedy, whom he once clerked for. And at age 53, he would likely sit on the nation’s highest court for decades to come.
Logan Espinoza is a freelance contributor specializing in economic issues. He lives in Phoenix, Arizona with his wife and daughter. Contact him at logan DOT espinoza AT yahoo DOT com.