Friday, September 19, 2008

SCOTUS: Declining World Influence

Adam Liptak of the Times has another great article up, from his ongoing "American Exception" legal series. This one is on the declining international influence of the U.S. Supreme Court and its opinions.

Judges around the world have long looked to the decisions of the United States Supreme Court for guidance, citing and often following them in hundreds of their own rulings since the Second World War.

But now American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

The rise of new and sophisticated constitutional courts elsewhere is one reason for the Supreme Court’s fading influence, legal experts said. The new courts are, moreover, generally more liberal than the Rehnquist and Roberts courts and for that reason more inclined to cite one another.

Another reason is the diminished reputation of the United States in some parts of the world, which experts here and abroad said is in part a consequence of the Bush administration’s unpopularity around the world. Foreign courts are less apt to justify their decisions with citations to cases from a nation unpopular with their domestic audience.

Naturally, much of this hand-wringing is no doubt met with a collective yawn and a provincial "so?" by those who could not care less about the influence of international law.

Many judges and legal scholars in this country say that consideration of foreign legal precedents in American judicial decisions is illegitimate, and that there can be no transnational dialogue about the meaning of the United States Constitution.

The Constitution should be interpreted according to its original meaning, said John O. McGinnis, a law professor at Northwestern, and recent rulings, whether foreign or domestic, cannot aid in that enterprise. Moreover, Professor McGinnis said, decisions applying foreign law to foreign circumstances are not instructive here.

“It may be good in their nation,” he said. “There is no reason to believe necessarily that it’s good in our nation.”

On the one hand, these critics make a valid point: it makes sense that our Constitution and interpretation thereof shouldn't necessarily be influenced by other countries and what they are doing in their courts.

But when world opinion and judicial thought is moving in a direction so different from our own (such as in the cases of executing juveniles or enforcing same-sex sodomy laws), certainly the Trop test of "evolving standards of decency" should reflect international action as well.

When one thinks of globalization, we usually think economically, but perhaps legal globalization is the next new frontier.

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