Supreme Court – Alien Tort Statute Does Not Authorize Judicially Created Causes of Action

Summary

On June 23, 2026, the Supreme Court held in Cisco Systems, Inc. v. Doe that the Alien Tort Statute (ATS) does not authorize courts to create new causes of action for violations of international norms. The Court’s decision, which is firmly rooted in separation-of-powers principles, closed a limited opening left by Sosa v. Alvarez-Machain suggesting that the ATS may empower federal courts to create new causes of action. The Court further held that the Torture Victim Protection Act (TVPA), which contains an express cause of action for certain victims who are tortured or killed to recover damages against perpetrators, does not authorize civil aiding-and-abetting liability because Congress did not expressly provide for such claims.

Background

Practitioners of Falun Gong, a religious movement in China, alleged that the government of China persecuted them through torture, cruel, inhuman, or degrading treatment, forced labor, prolonged and arbitrary detentions, crimes against humanity, forced disappearances, and extrajudicial killings—all in violation of widely recognized norms of international law, as reflected in sources like the U.N. Convention Against Torture and the Abolition of Forced Labour Convention.[1] According to the plaintiffs, defendant Cisco Systems, Inc. enabled their persecution by developing surveillance technology that the Chinese government utilized to identify and apprehend them.[2]

Seeking recovery from Cisco and certain of its executives for purportedly aiding and abetting international law violations, plaintiffs brought a putative class action under the ATS, which provides for “original jurisdiction” in federal courts “of any civil action by an alien for a tort” that is “committed in violation of the law of nations.”[3] One plaintiff also sought to hold Cisco executives liable under the TVPA, which creates a cause of action against an individual who “subjects” another to torture, on the theory that the statute also reaches those who aid and abet torture.[4]

The Ninth Circuit held that plaintiffs had stated viable claims under both the ATS and TVPA. As to the ATS claim, the Ninth Circuit concluded that aiding and abetting claims were “a viable form of liability under the ATS,” and that there was no “prudential reason to decline to” recognize it.[5] The Ninth Circuit also held that the TVPA “encompasses claims against those who aid and abet torture or extrajudicial killing.”[6] The Supreme Court granted certiorari to resolve whether Cisco may be held liable for aiding and abetting offenses under the ATS, and whether the TVPA is a basis for aiding and abetting liability against company executives.[7]

The Supreme Court’s Decision

The Supreme Court reversed. In a majority opinion delivered by Justice Barrett, the Supreme Court held that the ATS does not permit federal courts to create new causes of action, and that the TVPA is not a basis for an aiding-and-abetting claim.

Federal Courts May Not Create New ATS Causes of Action

The Court’s analysis of the ATS centered on its earlier decision in Sosa v. Alvarez-Machain, where the Court articulated that the ATS is “strictly jurisdictional” but also permits courts to recognize causes of action within “a narrow class of international norms.”[8] To maintain “vigilant doorkeeping” against judicially created remedies without “clos[ing] the door” entirely, “Sosa proposed a two-step framework,” which required plaintiffs to first show that an international norm “has a ‘definite content and acceptance among civilized nations,’” and second, that “it would be prudent for the court to create the proposed cause of action when the political branches have not acted.”[9] Noting an “obvious tension” between Sosa’s observation that the ATS is jurisdictional and yet permits courts to create new causes of action based on international norms, the Court “close[d] the door that Sosa cracked,” holding that “courts may not create new causes of action for violations of international norms.”[10]

The Court reasoned that “ATS cases by their nature implicate foreign policy,” thus making it difficult to identify any case where a court could conclude that an ATS case “would not have detrimental foreign policy consequences.”[11] The Court also explained that “the power to create causes of action” is the province of Congress, not the judiciary, and where there is even a single “sound reason” to defer to Congress—here, for example, the “possible collateral consequences of making international rules privately actionable” under the ATS—federal courts may not create a cause of action.[12] For those reasons, the Court confirmed the holding from Sosa that “the ATS is a jurisdictional statute” only and held that the “class of cases in which courts may create ATS actions without infringing on the prerogatives of the political branches . . . is a null set.”[13]

The TVPA Does Not Authorize Aiding-and-Abetting Liability

With respect to aiding-and-abetting claims under the TVPA, the Court explained that the statute creates liability against an individual who “subjects” another individual to torture, but does not expressly mention aiding and abetting.[14] Relying on Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.,[15] the Court reasoned that civil aiding-and-abetting is a specialized form of liability that Congress imposes expressly when it chooses to do so.[16] The statute’s “silence” regarding aiding-and-abetting liability was “enough to settle the issue” under the rule in Central Bank.[17] The Court rejected the argument that the word “subjects” is broad enough to include aiding-and-abetting liability.[18] Rather, it requires a causal connection between torturer and victim, whereas aiding-and-abetting liability reaches persons one or more steps removed from the torturer.[19]

Dissent

Justice Sotomayor dissented, joined in part by Justices Kagan and Jackson. The three dissenting justices argued that the majority effectively overruled Sosa, without undertaking the usual stare decisis analysis, by closing the door entirely to any judicial remedy even in narrow circumstances.[20] According to the dissent, Sosa remains a workable, case-by-case framework.[21] In a portion of the dissent not joined by Justices Kagan and Jackson, Justice Sotomayor explained that the TVPA authorizes aiding-and-abetting claims because the term “subjects” also includes conscious and culpable participation in torture “so as to help ‘make it succeed.’”[22]

Implications

In further narrowing the scope of actionable claims under the ATS, the Supreme Court continued a trend that began after Sosa. In Kiobel v. Royal Dutch Petroleum Co., for example, the Court held that any ATS claim is subject to a presumption against extraterritorial application, thus barring claims “seeking relief for violations of the law of nations occurring outside the United States.”[23] And in Nestlé USA, Inc. v. Doe, the Court held that “allegations of general corporate activity” in the United States “cannot alone establish domestic application of the ATS.”[24]

Although those prior decisions had already narrowed ATS claims, some plaintiffs had argued that courts could recognize causes of action based on sufficiently definite and universally accepted international-law norms. Cisco forecloses that path by adding a broader limitation: courts may not create new causes of action under the ATS at all. The decision also reinforces the Court’s reluctance to infer damages remedies based on secondary-liability theories like aiding and abetting absent express congressional authorization, particularly where foreign affairs, national security, or politically sensitive policy judgments are implicated.

The decision in Cisco may be particularly significant for multinational companies with some connection to the United States that operate in regions with elevated risks of human rights violations. By eliminating judicially created ATS causes of action and rejecting aiding-and-abetting theories under the TVPA, Cisco removes a principal vehicle for pursuing claims arising from such alleged violations in U.S. courts.