Waning Legal Influence of the "Special" Kids

I’m archiving big chunks of this one. While the author’s dominant analysis is conservative, the finding: declining judicial influence, is important.

What this article should spur is a less moronic (“ooh! the American specialness of contempt for human rights!”), much more critical inquiry into the many abuses of American Exceptionalism. There’s nothing to celebrate or preserve with loving care, in being an island of rural idiocy. Another piece of reflection this article could spur is this: Who wants to live in a country where legal scholars and communications professionals fetishize and follow an increasingly isolating legacy of devotion to private property, individualism, and a fascistic approach to crime?

In the original article (hit this entry’s title for the NYTimes link) author Liptak is frequently ahistorical, in his attempt to help conservatives protect their egos. All spin aside, the fact is that the US and the US courts have been less fascistic than they now are, and in those more liberal periods, they were respected more. And that’s about right. Yes, the US has a fucked history, but conservatism doesn’t equal Americanism, no matter how conservatives like to flatter themselves.

Conservatives decry less fascistic judges as “activist”, arguing either that (1) liberal jurisprudence is out of step with inherently conservative legislatures and the faithful conservative public (as is asserted in this particular article), or (2) that liberal jurisprudence refuses to follow the mystified intent of the Founding Fathers. It is flat-out ridiculous that journalists allow conservatives to have it both ways; but either way, that spin is only conservative self-flattery. Conservatives are activists, activists of conservatism. Conservatives are not the soul of the public; they are not the soul of legislators; and they are not the soul of the founding fathers (well, Jefferson anyway). If you’re just talking public opinion, at best, surveys of the US public indicate that 11% of Republican (not the total) voting base subscribes to their brand of conservatism even today (according to a recent Pew survey), after decades of elite-sponsored right-wing social movement. More Republican voters subscribe to cultural bits of conservatism, but not the whole enchilada. Then there are the legions of citizens who are not conservative at all.

It is testament to the redeemability of humanity worldwide, that the US is followed when it is less fascistic, and its ideas and laws are rejected when its Great Men scurry about, making life a living hell almost everywhere.

The thing to be concerned about is this: US conservatives have exerted great influence over the politics of not only the US, but other countries as well. Doesn’t it strike you as odd, that when the US throws a Bush up into leadership, Germany, England, Canada, Italy, Sweden, etc. follow suit? Are voters around the world calculating: “Well electing this right-wing asshole locally will make the American conservative assholes more comfortable, so I’ll help elect him!”? No, that’s not how it goes. It’s world wide elite social movement organization that gets country after country to vote for a conservative platform or a liberal platform. What Liptak’s conservatives are saying between the lines here is that despite all their efforts to export the conservative model world-wide, judiciaries are still resistant institutions outside the US. This means that conservative activists are lining other countries’ judiciaries up in their gun sights.

Citizens of the world, prevent the further spread of barbarism! Protect your judiciaries from fascism!

September 18, 2008
U.S. Court Is Now Guiding Fewer Nations
The New York Times

Tom Torok and Kitty Bennett contributed reporting


“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.

“One of our great exports used to be constitutional law,” said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton. “We are losing one of the greatest bully pulpits we have ever had.”

From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has fallen by half, to about six.

Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.

The story is similar around the globe, legal experts say, particularly in cases involving human rights. These days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, “they tend not to look to the rulings of the U.S. Supreme Court.”

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.

“It’s not surprising, given our foreign policy in the last decade or so, that American influence should be declining,” said Thomas Ginsburg, who teaches comparative and international law at the University of Chicago.”

Justice Michael Kirby of the High Court of Australia said that his court no longer confined itself to considering English, Canadian and American law. “Now we will take information from the Supreme Court of India, or the Court of Appeal of New Zealand, or the Constitutional Court of South Africa,” he said in an interview published in 2001 in The Green Bag, a legal journal. “America” he added, “is in danger of becoming something of a legal backwater.”


“The adamant opposition of some Supreme Court justices to the citation of foreign law in their own opinions also plays a role, some foreign judges say.

“Most justices of the United States Supreme Court do not cite foreign case law in their judgments,” Aharon Barak, then the chief justice of the Supreme Court of Israel, wrote in the Harvard Law Review in 2002. “They fail to make use of an important source of inspiration, one that enriches legal thinking, makes law more creative, and strengthens the democratic ties and foundations of different legal systems.”

Partly as a consequence, Chief Justice Barak wrote, the United States Supreme Court “is losing the central role it once had among courts in modern democracies.”


“The opinion of the world community,” Justice Anthony M. Kennedy wrote for the majority in Roper v. Simmons, the 2005 decision that struck down the death penalty for juvenile offenders, “while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Justice Kennedy cited, among other things, the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, and the Criminal Justice Act from the United Kingdom.

In Lawrence v. Texas, the 2003 decision striking down a Texas law making homosexual sex a crime, Justice Kennedy cited three decisions of the European Court of Human Rights, noting that homosexual conduct was accepted as “an integral part of human freedom” in many countries.

Fascist Justice Antonin Scalia, dissenting in Roper v. Simmons, fired back. “The basic premise of the court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand,” he wrote.

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.

Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. “The Supreme Court has been doing it for basically all of our history, and with some degree of gusto,” said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.

Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.

Chief Justice John Marshall, sitting as a circuit court judge, discussed the question in 1811. “It has been said that the decisions of British courts, made since the Revolution, are not authority in this country,” he said. “I admit it — but they are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide.”

Indeed, American judges cite all sorts of things in their decisions — law review articles, song lyrics, television programs. State supreme courts cite decisions from other states, though a decision from Wisconsin is no more binding in Oregon than is one from Italy.

“Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge,” Justice Ruth Bader Ginsburg said in a 2006 address to the Constitutional Court of South Africa. “But they can add to the story of knowledge relevant to the solution of trying questions.”


“The rightward shift of the (US) Supreme Court may partly account for its diminished influence. Twenty years ago, said Anthony Lester, a British barrister, the landmark decisions of the court were “studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C.”

That is partly because the foundational legal documents of many of the world’s leading democracies are of quite recent vintage. The Indian Constitution was adopted in 1949, the Canadian Charter of Rights and Freedoms in 1982, the New Zealand Bill of Rights in 1990 and the South African Constitution in 1996. All drew on American constitutional principles.

Particularly at first, courts in those nations relied on the constitutional jurisprudence of the United States Supreme Court, both because it was relevant and because it was the essentially the only game in town. But as constitutional courts around the world developed their own bodies of precedent and started an international judicial conversation, American influence has dropped.

Judge Guido Calabresi of the federal appeals court in New York, a former dean of Yale Law School, has advocated continued participation in that international judicial conversation.

“Since World War II, many countries have adopted forms of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration from American constitutional theory and practice,” he wrote in a 1995 concurrence that cited the German and Italian constitutional courts.

“These countries are our ‘constitutional offspring,’ ” Judge Calabresi wrote, “and how they have dealt with problems analogous to ours can be very useful to us when we face difficult constitutional issues. Wise parents do not hesitate to learn from their children.” (Judge Calabresi is Professor Calabresi’s uncle.)

The openness of some legal systems to foreign law is reflected in their constitutions. The South African Constitution, for instance, says that courts interpreting its bill of rights “must consider international law” and “may consider foreign law.” The constitutions of India and Spain have similar provisions.

The signature innovations of the American legal system — a written Constitution, a Bill of Rights protecting individual freedoms and an independent judiciary with the power to strike down legislation — have been consciously emulated in much of the world. And American constitutional law has been cited and discussed in countless decisions of courts in Australia, Canada, Germany, India, Israel, Japan, New Zealand, South Africa and elsewhere.

In a 1996 decision striking down a law that made it a crime to possess pornography, for instance, the Constitutional Court of South Africa conducted a broad survey of American First Amendment jurisprudence, citing some 40 decisions of the United States Supreme Court. That same year, the High Court of Australia followed a 1989 decision of the Supreme Court in a separation-of-powers case, ruling that a judge was permitted to prepare a report for a government minister about threats to aboriginal areas because the assignment did not undermine the integrity of the judicial branch.


Many legal scholars singled out the Canadian Supreme Court and the Constitutional Court of South Africa as increasingly influential.

“In part, their influence may spring from the simple fact they are not American,” Dean Slaughter wrote in a 2005 essay, “which renders their reasoning more politically palatable to domestic audience in an era of extraordinary U.S. military, political, economic and cultural power and accompanying resentments.”

Frederick Schauer, a law professor at the University of Virginia, wrote in a 2000 essay that the Canadian Supreme Court had been particularly influential because “Canada, unlike the United States, is seen as reflecting an emerging international consensus rather than existing as an outlier.”

In New Zealand, for instance, Canadian decisions were cited far more often than those of any other nation from 1990 to 2006 in civil rights cases, according to a recent study in The Otago Law Review in Dunedin, New Zealand.


“American popular attitudes toward the citation of foreign law, by contrast, Mark C. Rahdert wrote in the American University Law Review last year, “tap into a longstanding tradition of exceptionalism.”

That tradition is rooted in a popular devotion to the Constitution unknown in the rest of the world. It is supported by aspects of the American character that were formed by the nation’s initial geographic isolation and pioneer spirit, which emphasized freedom, private property and individual responsibility. That has led, for instance, to a near-absolute commitment to free speech and a particularly tough approach to crime.

In “ ‘A Shining City on a Hill’: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law,” a 2006 article in the Boston University Law Review, Professor Calabresi concluded that the Supreme Court should be wary of citing foreign law in most constitutional cases precisely because the United States is exceptional.

“Like it or not,” he wrote, “Americans really are a special people with a special ideology that sets us apart from all the other peoples.””

Here is apparently another case where “special” is a polite euphemism for “retarded”.


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