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: Law Blog - WSJ.com

High Court Recusals Mean S. Africa Apartheid Case Can Move Forward

By Dan Slater

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scotus The law of recusal: If the High Court can’t muster a quorum, the lower court decision is affirmed.

That’s what happened yesterday when the Supreme Court refused to hear an appeal by a group of more than 30 companies who are being sued by victims of South Africa’s former apartheid regime for allegedly doing business with the regime. The reason for recusal? For Roberts, Breyer and Alito, it was stock ownership. For Justice Kennedy, it’s his son, who works for Credit Suisse, one of the defendants. Here are reports from the WSJ’s Jess Bravin and the NYT’s Linda Greenhouse.

The suit, filed under the nearly 220 year-old Alien Tort Claims Act, which allows U.S. courts to hear claims brought by aliens for violations of international law, is a consolidation of 10 lawsuits filed in the name of everyone who lived in South Africa from 1948 to 1994 and who was injured by the official system of racial separation. Defendant-companies include Chevron, Citigroup and Ford.

A trial judge, according to the reports, dismissed the case after South Africa’s current democratic government complained that the suit interfered with the country’s internal efforts to address apartheid’s legacy. But the Second Circuit Court of Appeals reinstated the case, holding that, among other issues, the lower court must consider more carefully whether permitting the suit to proceed would interfere with U.S. policy objectives, as the Bush Administration has claimed.

The Bush administration, writes the WSJ, has come to find the suits particularly irksome. In a speech last month at Vanderbilt University, the State Department’s chief lawyer, John Bellinger, called for curbs on the alien tort law. “Imagine, for example, what the U.S. reaction would be if a Swiss court sought to adjudicate claims brought against U.S. government officials or businesses for Jim Crow-era racial restrictions,” he said. “From the South African perspective, the apartheid case must look very similar.”