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American Exception

U.S. Court, Long a Beacon, = Guides Fewer=20 Nations

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By ADAM=20 LIPTAK

Published: September 17, 2008

WASHINGTON =97 Judges around the world have long looked to the = decisions of the=20 United=20 States Supreme Court for guidance, citing and often following them = in=20 hundreds of their own rulings since the Second World War.

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American Exception

A Loss of Influence

This series of articles examines commonplace aspects = of the=20 American justice system that are almost unique in the world.

Previous=20 Articles in the Series =BB

Multimedia

Graphic =

Justices=92=20 Views, Past and Present

But now American legal influence is waning. Even as a debate = continues in the=20 court over whether its decisions should ever cite foreign law, a = diminishing=20 number of foreign courts seem to pay attention to the writings of = American=20 justices.

=93One of our great exports used to be constitutional law,=94 said = Anne-Marie=20 Slaughter, the dean of the Woodrow=20 Wilson School of Public and International Affairs at Princeton. = =93We are=20 losing one of the greatest bully pulpits we have ever had.=94

From 1990 through 2002, for instance, the Canadian Supreme Court = cited=20 decisions of the United States Supreme Court about a dozen times a year, = an=20 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,=20 according to a recent study by Russell = Smyth, an=20 Australian economist. By 2005, the number had fallen to 72.

The story is similar around the globe, legal experts say, = particularly in=20 cases involving human rights. These days, foreign courts in developed=20 democracies often cite the rulings of the European=20 Court of Human Rights in cases concerning equality, liberty and = prohibitions=20 against cruel treatment, said Harold Hongju Koh, the dean of the Yale = Law=20 School. In those areas, Dean Koh said, =93they tend not to look to the = rulings of=20 the U.S. Supreme Court.=94

The rise of new and sophisticated constitutional courts elsewhere is = one=20 reason for the Supreme Court=92s fading influence, legal experts said. = The new=20 courts are, moreover, generally more liberal than the Rehnquist and = Roberts=20 courts and for that reason more inclined to cite one another.

Another reason is the diminished reputation of the United States in = some=20 parts of the world, which experts here and abroad said is in part a = consequence=20 of the Bush administration=92s unpopularity around the world. Foreign = courts are=20 less apt to justify their decisions with citations to cases from a = nation=20 unpopular with their domestic audience.

=93It=92s not surprising, given our foreign policy in the last decade = or so, that=20 American influence should be declining,=94 said Thomas Ginsburg, who = teaches=20 comparative and international law at the University=20 of Chicago.

Aversion to Foreign Law

The adamant opposition of some Supreme Court justices to the citation = of=20 foreign law in their own opinions also plays a role, some foreign judges = say.

=93Most justices of the United States Supreme Court do not cite = foreign case=20 law in their judgments,=94 Aharon Barak, then the chief justice of the = Supreme=20 Court of Israel, wrote in the Harvard Law Review in 2002. =93They fail = to make use=20 of an important source of inspiration, one that enriches legal thinking, = makes=20 law more creative, and strengthens the democratic ties and foundations = of=20 different legal systems.=94

Partly as a consequence, Chief Justice Barak wrote, the United States = Supreme=20 Court =93is losing the central role it once had among courts in modern=20 democracies.=94

Justice Michael Kirby of the High Court of Australia said that his = court no=20 longer confined itself to considering English, Canadian and American = law. =93Now=20 we will take information from the Supreme Court of India, or the Court = of Appeal=20 of New Zealand, or the Constitutional Court of South Africa,=94 he said = in an=20 interview published in 2001 in The Green Bag, a legal journal. = =93America=94 he=20 added, =93is in danger of becoming something of a legal = backwater.=94

The signature innovations of the American legal system =97 a written=20 Constitution, a Bill of Rights protecting individual freedoms and an = independent=20 judiciary with the power to strike down legislation =97 have been = consciously=20 emulated in much of the world. And American constitutional law has been = cited=20 and discussed in countless decisions of courts in Australia, Canada, = Germany,=20 India, Israel, Japan, New Zealand, South Africa and elsewhere.

In a 1996 decision striking down a law that made it a crime to = possess=20 pornography, for instance, the Constitutional Court of South Africa = conducted a=20 broad survey of American First Amendment jurisprudence, citing some 40 = decisions=20 of the United States Supreme Court. That same year, the High Court of = Australia=20 followed a 1989 decision of the Supreme Court in a separation-of-powers = case,=20 ruling that a judge was permitted to prepare a report for a government = minister=20 about threats to aboriginal areas because the assignment did not = undermine the=20 integrity of the judicial branch.

Sending American ideas about the rule of law abroad has long been a = source of=20 pride. =93The United States Supreme Court is the oldest constitutional = court in=20 the world =97 the most respected, the most legitimate,=94 said Charles = Fried, a law=20 professor at Harvard who served as solicitor general in the Reagan=20 administration.

But there is an intense and growing debate about whether that = influence=20 should be a one-way street.

Justice Sandra=20 Day O=92Connor, in a speech = before her=20 retirement from the Supreme Court, advocated taking as well as = giving.

=93I suspect that with time we will rely increasingly on = international and=20 foreign law in resolving what now appear to be domestic issues,=94 = Justice=20 O=92Connor said. =93Doing so may not only enrich our own country=92s = decisions; it=20 will create that all-important good impression. When U.S. courts are = seen to be=20 cognizant of other judicial systems, our ability to act as a rule-of-law = model=20 for other nations will be enhanced.=94

But many judges and legal scholars in this country say that = consideration of=20 foreign legal precedents in American judicial decisions is illegitimate, = and=20 that there can be no transnational dialogue about the meaning of the = United=20 States Constitution.

The Constitution should be interpreted according to its original = meaning,=20 said John O. McGinnis, a law professor at Northwestern, and recent = rulings,=20 whether foreign or domestic, cannot aid in that enterprise. Moreover, = Professor=20 McGinnis said, decisions applying foreign law to foreign circumstances = are not=20 instructive here.

=93It may be good in their nation,=94 he said. =93There is no reason = to believe=20 necessarily that it=92s good in our nation.=94

In any event, said Eric Posner, a law professor at the University of = Chicago,=20 many Americans are deeply suspicious of foreign law.

=93We are used to encouraging other countries to adopt American = constitutional=20 norms,=94 he wrote in an ess= ay last=20 month, =93but we have never accepted the idea that we should adopt = theirs.=94

=93It=92s American exceptionalism,=94 Professor Posner added in an = interview. =93The=20 view going back 200 years is that we=92ve figured it out and people = should follow=20 our lead.=94

Fiery Debate

Yet citations to foreign and international law in recent Supreme = Court=20 decisions ignited an enormous furor in Congress and in the popular=20 consciousness.

=93The opinion of the world community,=94 Justice Anthony=20 M. Kennedy wrote for the majority in = Roper v.=20 Simmons, the 2005 decision that struck down the death penalty for = juvenile=20 offenders, =93while not controlling our outcome, does provide respected = and=20 significant confirmation for our own conclusions.=94 Justice Kennedy = cited, among=20 other things, the United=20 Nations Convention on the Rights of the Child, the African Charter = on the=20 Rights and Welfare of the Child, and the Criminal Justice Act from the = United=20 Kingdom.

In Lawrence v. Texas, the 2003 decision=20 striking down a Texas law making homosexual sex a crime, Justice Kennedy = cited=20 three decisions of the European Court of Human Rights, noting that = homosexual=20 conduct was accepted as =93an integral part of human freedom=94 in many=20 countries.

Justice Antonin=20 Scalia, dissenting = in Roper=20 v. Simmons, fired back. =93The basic premise of the court=92s argument = =97 that=20 American law should conform to the laws of the rest of the world =97 = ought to be=20 rejected out of hand,=94 he wrote.

The issue has rankled Justice Kennedy. =93There=92s kind of a = know-nothing=20 quality to the debate, it seems to me, of being suspicious of foreign = things,=94=20 he said in remarks=20 at a judicial conference in July.

At their confirmation hearings, Chief Justice John=20 G. Roberts Jr. and Justice Samuel=20 A. Alito Jr. indicated that they were opposed to the citation of = foreign law=20 in constitutional cases. Chief Justice Roberts noted that foreign judges = were=20 not accountable to the American people and said that allowing the use of = foreign=20 precedent expanded judicial discretion.

=93Foreign law, you can find anything you want,=94 Chief Justice = Roberts said.=20 =93Looking at foreign law for support is like looking out over a crowd = and picking=20 out your friends.=94

The controversy over the citation of foreign law in American courts = is=20 freighted with misconceptions. One is that the practice is somehow new = or=20 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=20 decisions by foreign courts in their rulings. =93The Supreme Court has = been doing=20 it for basically all of our history, and with some degree of gusto,=94 = said Steven=20 G. Calabresi, a law professor at Northwestern and a founder of the = Federalist=20 Society, a conservative legal group. Professor Calabresi said he = generally=20 opposed the citation of foreign law in constitutional cases.

Judicial citation or discussion of a foreign ruling does not, = moreover,=20 convert it into binding precedent.

Chief Justice John Marshall, sitting as a circuit court judge, = discussed the=20 question in 1811. =93It has been said that the decisions of British = courts, made=20 since the Revolution, are not authority in this country,=94 he said. = =93I admit it =97=20 but they are entitled to that respect which is due to the opinions of = wise men=20 who have maturely studied the subject they decide.=94

Indeed, American judges cite all sorts of things in their decisions = =97 law=20 review articles, song lyrics, television programs. State supreme courts = cite=20 decisions from other states, though a decision from Wisconsin is no more = binding=20 in Oregon than is one from Italy.

=93Foreign opinions are not authoritative; they set no binding = precedent for=20 the U.S. judge,=94 Justice Ruth=20 Bader Ginsburg said in a 2006 = address=20 to the Constitutional Court of South Africa. =93But they can add to the = story of=20 knowledge relevant to the solution of trying questions.=94

But Professor Fried said the area was a minefield. =93Courts have = been citing=20 foreign law forever, but sparingly, for very good reason,=94 he said. = =93It is an=20 invitation to bolster conclusions reached on other grounds. It leads to = more=20 impressionistic, undisciplined adjudication.=94

The trend abroad, moreover, is toward decisions of a distinctly = liberal sort=20 in areas like the death penalty and gay rights. =93What we have had in = the last 20=20 or 30 years,=94 Professor Fried said, =93is an enormous coup d=92=E9tat = on the part of=20 judiciaries everywhere =97 the European Court of Human Rights, Canada, = South=20 Africa, Israel.=94 In terms of judicial activism, he said, =93they=92ve = lapped=20 us.=94

American Foundations

The rightward shift of the Supreme Court may partly account for its=20 diminished influence. Twenty years ago, said Anthony Lester, a British=20 barrister, the landmark decisions of the court were =93studied with as = much=20 attention in New Delhi or Strasbourg as they are in Washington, = D.C.=94

That is partly because the foundational legal documents of many of = the=20 world=92s leading democracies are of quite recent vintage. The Indian = Constitution=20 was adopted in 1949, the Canadian Charter of Rights and Freedoms in = 1982, the=20 New Zealand Bill of Rights in 1990 and the South African Constitution in = 1996.=20 All drew on American constitutional principles.

Particularly at first, courts in those nations relied on the = constitutional=20 jurisprudence of the United States Supreme Court, both because it was = relevant=20 and because it was the essentially the only game in town. But as = constitutional=20 courts around the world developed their own bodies of precedent and = started an=20 international judicial conversation, American influence has dropped.

Judge Guido Calabresi of the federal appeals court in New York, a = former dean=20 of Yale Law School, has advocated continued participation in that = international=20 judicial conversation.

=93Since World War II, many countries have adopted forms of judicial = review,=20 which =97 though different from ours in many particulars =97 = unmistakably draw their=20 origin and inspiration from American constitutional theory and = practice,=94 he=20 wrote in a 1995 concurrence=20 that cited the German and Italian constitutional courts.

=93These countries are our =91constitutional offspring,=92 =94 Judge = Calabresi wrote,=20 =93and how they have dealt with problems analogous to ours can be very = useful to=20 us when we face difficult constitutional issues. Wise parents do not = hesitate to=20 learn from their children.=94 (Judge Calabresi is Professor = Calabresi=92s=20 uncle.)

The openness of some legal systems to foreign law is reflected in = their=20 constitutions. The South African Constitution, for instance, says that = courts=20 interpreting its bill of rights =93must consider international law=94 = and =93may=20 consider foreign law.=94 The constitutions of India and Spain have = similar=20 provisions.

Many legal scholars singled out the Canadian Supreme Court and the=20 Constitutional Court of South Africa as increasingly influential.

=93In part, their influence may spring from the simple fact they are = not American,=94 Dean Slaughter wrote in a 2005 = essay, =93which=20 renders their reasoning more politically palatable to domestic audience = in an=20 era of extraordinary U.S. military, political, economic and cultural = power and=20 accompanying resentments.=94

Frederick Schauer, a law professor at the University=20 of Virginia, wrote in a 2000 essay that the Canadian Supreme Court = had been=20 particularly influential because =93Canada, unlike the United States, is = seen as=20 reflecting an emerging international consensus rather than existing as = an=20 outlier.=94

In New Zealand, for instance, Canadian decisions were cited far more = often=20 than those of any other nation from 1990 to 2006 in civil rights cases,=20 according to a recent stu= dy in=20 The Otago Law Review in Dunedin, New Zealand.

=93As Canada=92s judges are, by most accounts, the most judicially = activist in=20 the common-law world =97 the most willing to second-guess the decisions = of the=20 elected legislatures =97 reliance on Canadian precedents will worry some = and=20 delight others,=94 the study=92s authors wrote.

American precedents were cited about half as often as Canadian ones. = =93It is=20 surprising,=94 the authors wrote, =93that American cases are not cited = more often,=20 since the United States Bill of Rights precedents can be found on just = about any=20 rights issue that comes up.=94

American popular attitudes toward the citation of foreign law, by = contrast,=20 Mark C. Rahdert wro= te in=20 the American University Law Review last year, =93tap into a longstanding = tradition=20 of exceptionalism.=94

That tradition is rooted in a popular devotion to the Constitution = unknown in=20 the rest of the world. It is supported by aspects of the American = character that=20 were formed by the nation=92s initial geographic isolation and pioneer = spirit,=20 which emphasized freedom, private property and individual = responsibility. That=20 has led, for instance, to a near-absolute commitment to free speech and = a=20 particularly tough approach to crime.

In =93 =91A Shining City on a Hill=92: American Exceptionalism and = the Supreme=20 Court=92s Practice of Relying on Foreign Law,=94 a 2006 article=20 in the Boston=20 University Law Review, Professor Calabresi concluded that the = Supreme Court=20 should be wary of citing foreign law in most constitutional cases = precisely=20 because the United States is exceptional.

=93Like it or not,=94 he wrote, =93Americans really are a special = people with a=20 special ideology that sets us apart from all the other peoples.=94

Tom Torok and Kitty Bennett contributed=20 reporting.

More Articles = in US=20 =BB A version of this article appeared in print on September = 18, 2008,=20 on page A1 of the New York edition.

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