In November last year, Bellinger called Shell's lawyer, Kathleen Sullivan, who had been one of his professors at Harvard Law School. Sullivan, who declined to comment for this story, was preparing to argue the question that was before the Supreme Court at the time: whether the statute applied to corporations. Bellinger says she mentioned to him that former U.S. Solicitor General Paul Clement was writing a brief for IBM in support of Shell. IBM is one of dozens of corporations that are defendants in another case, brought by South Africans who suffered abuses under apartheid.
Clement, a 46-year-old conservative wunderkind, has argued more than 50 cases before the nation's top court. In late 2011 he was working on some of the nation's highest-profile cases, including defending Arizona's immigration law and a federal law that defines marriage as a union between a man and a woman.
Clement and Bellinger had worked together on an Alien Tort Statute case when Clement was solicitor general and Bellinger was at the State Department. When they spoke, the two lawyers decided to team up again. "Paul agreed," said Bellinger, "we could track a number of the issues we'd argued in government."
They divvied up the work. To build their case, Bellinger sought to document instances where foreign governments had complained about the statute. Clement's job was to look at the big picture.
In an interview, Clement said he saw two issues lower courts were grappling with. One was Bellinger's concern about whether the statute applied to cases where abuses were committed in foreign countries. The other was whether helping a foreign government commit an abuse, rather than committing the abuse directly, was covered by the statute. Only the 2nd Circuit's Kiobel decision had brought up the new question of whether a corporation, rather than an individual, could be held liable under the statute. It was almost as if the Supreme Court was looking at the wrong question, Clement said.