ABSTRACT
We usually think of U.S. foreign policy being made and conducted by the “political” branches, with only a minor and occasional role for the judiciary. But in the 2013 Kiobel case, the U.S. Supreme Court engaged in judicial activism to overturn some 35 years of settled law that favored a special U.S. role in protecting human rights abroad. Until then, the United States had demonstrated a rare situation of true American exceptionalism. The United States was the only country in the world to open its national (viz., federal) courts to civil law suits by foreigners (viz., aliens) who claimed to be the victims of major international human rights violations like torture.1 In other words, the United States had established universal jurisdiction for violations of international law involving wrongs in civil law.
