You gotta hand it to the New York Times. On a slow news day (!), it can pull out a story of no particular urgency or importance, which a reporter filed any time from yesterday to three months ago, and plug a big hole on the front page. If the story is bound to cause the most intellectually credentialed readers of the Times to stroke their chins and say “how interesting . . . ,” then a bit of circulation marketing has been accomplished. The editors sure know how to cater to the core of their diminishing readership!
So it is with today’s front-pager on the apparently waning influence of the U.S. Supreme Court on the courts of other nations. It seems that leading national and provincial appellate courts in other countries are citing opinions of our highest court less than they used to. To his credit, reporter Adam Liptak also reviews the debate in this country about whether American judges should rely on foreign legal opinions, and quotes such skeptics as Chief Justice Roberts, Justices Antonin Scalia and Samuel Alito, and scholars John McGinnis, Eric Posner, Steven Calabresi, and Charles Fried. But the article is about the flow in both directions on this international street, so I’ll add a few thoughts of my own on the phenomenon that made the headline.
Why should we care whether foreign courts cite the decisions and opinions of the U.S. Supreme Court? First, even if we were (absurdly) convinced that our Court is always right, we could not say–without much more study of local legal conditions–whether a foreign country would benefit from modelling its jurisprudence on American reasoning. Second, we don’t live there (wherever “there” is), and have no stake in foreign decisions nor any business intruding on them. And third, just as foreign judges are not answerable to American democracy (a point Chief Justice Roberts makes), the reverse is also true. An Australian judge who is guided by an opinion of Justice Anthony Kennedy is not exactly serving the Australian people, is he?
Justice Scalia argues that when our judges go foraging in foreign fields, they will always return with the opinions that favor their own prejudices. This is borne out by the Times piece, which offers some possible explanations for the waning influence of our Court overseas. Here are the two most prominent and plausible: the first is that foreign courts are “generally more liberal than the Rehnquist and Roberts courts and for that reason more inclined to cite one another”; and the second is “the diminished reputation of the United States in some parts of the world,” which leads to “[f]oreign courts [being] less apt to justify their decisions with citations to cases from a nation unpopular with their domestic audience.”
Could there be stronger evidence that jurisprudential tourism is an essentially political exercise, not a legal one? If I am a judge in Country A, and I look to opinions from courts in Country B that interpret similar legal principles under similar factual circumstances, how could it possibly matter whether the outcome in Country B was more “conservative” or more “liberal” than the pattern of decisions in comparable cases in my own Country A, or whether citing Country B’s court will be “popular” with my “audience”? Leaving the possibility of conflicting national precedents to one side for a moment, the only relevant question ought to be, is an opinion I read from Country B persuasive as a job of legal reasoning?
But surely there is no shortage of sound legal reasoning available to me in the traditions of my own country–and if I venture into the vast field of foreign law, the sheer volume and variety of available stuff out there will naturally lead to selection bias. That necessary filtering-out will inevitably respond to what I already think about the law–about my country’s law, and what shape it has that I should preserve or change.
Liptak has written an inadvertently interesting article after all. The thoughtful reader may now ask himself, is there ever any good reason for foreign judges to cite American ones, any more than there is for American judges to cite foreign ones? It doesn’t look like it.
So the waning influence of the U.S. Supreme Court overseas turns out to be a good-news story. Now let’s have some reciprocity!