The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Tuesday in Jesner v. Arab Bank, PLC [SCOTUSblog materials] that foreign corporations cannot be used in the US under the Alien Tort Statute (ATS) [Cornell LII backgrounder].

The plaintiffs in the case are victims of terrorist attacks in Israel, the West Bank and Gaza. They allege that the bank and its offices in New York should be held liable for knowingly financing terrorism. The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] that the bank cannot be held liable.

In a split opinion by Justice Anthony Kennedy, the Supreme Court affirmed that ruling. Kennedy said it must be left to Congress to decide whether to allow such suits against foreign corporations, not the courts: “With the ATS, the First Congress provided a federal remedy for a narrow category of international-law violations committed by individuals. Whether, more than two centuries on, a similar remedy should be available against foreign corporations is similarly a decision that Congress must make.”

Kennedy delivered the opinion of the court with respect to Parts I, II-B-1, and II-C, in which Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch joined, and an opinion with respect to Parts II-A, II-B-2, II-B-3, and III, in which Roberts and Thomas joined. Thomas filed a concurring opinion. Alito and Gorsuch filed opinions concurring in part and concurring in the judgment. Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined.