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Exporting U.S.Supreme Court Decisions

By Jack M. Balkin

It is nice to read -- finally! -- some good news in the New York Times: "U.S. Court, Long a Beacon, Guides Fewer Nations," rings the headline of Adam Liptak's mildly interesting New York Times article today. (Sandy Levinson discusses the article, too, nearby.) The article's slant is that the U.S. Supreme Court, sadly, is losing its international prestige; its currency with courts of other nations is diminishing.

The article goes on to spend more of its time focsuing on the controversy over U.S. Supreme Court citation of foreign law in its constitutional decisions. The latter practice aggravates many constitutional conservatives. But it would seem an almost unrelated concern. What unites the two phenomena, loosely, is the idea of some sort of U.S. balance-of-trade in the export-import market for constitutional interpretation.

On the export side: I am relieved, heartened, even delighted that U.S. Supreme Court decisions less often are being cited, adopted, borrowed, or stolen by the courts of foreign nations! Since so much of what passes for "constitutional interpretation" by the U.S. Supreme Court is simply ad hoc judicial policymaking with (at best) tenuous connection to our America constitutional text, and since I so often disagree with the results of such policymaking(both as a matter of proper interpretation and because I think the outcomes tend to end up being rather bad policymaking), it is probably a good thing that foreign constitutional courts do not seek (as often as before) to plagiarize American Supreme Court errors. Our Court serves as a bad example, methodologically, concerning how to go about the enterprise of constitutional interpretation of an authoritative written legal text. And some of the policymaking we have exported over the years -- a constitutional right to abortion, for example -- is in my view equally unfortunate.

I certainly am not concerned that this might (or might not) be evidence that foreign nations do not like America so much as they might (or might not) have liked us in the past. Concern about this would seem to betray an unhealthy insecurity on our part. ("Oh my! What do other countries think of our Supreme Court these days?! What can we do to get more citations?!") As with law professors who check, daily, their "citation counts," I think we should just relax, get over ourselves, and simply try to interpret our Constitution correctly.

More importantly, I am optimistic enough to hope that diminished exports of Supreme Court interpretations of our Constitution reflect the increased understanding by foreign courts that (1) their written constitutions are not the same as ours;(2) even where language might be similar, our Supreme Court's interpretations are often not very sound; and (3) even where such foreign courts might possess a proper authority to engage in policymaking, U.S. judicial policymaking is not very good policymaking.

On the import side: I am not one of those conservatives who gets wildly upset about the mere citation of foreign law. Judges may find sources of enlightenment wherever they wish. (This is much my approach to citation of U.S. precedent by the U.S. Supreme Court, too.)

Thus, comparisons with the interpretive approach, and results, of other nations can be interesting at least, and perhaps marginally useful. I often include foreign constitutional decisions in my (USA) constitutional law teaching materials. They are interesting! And what exactly is the harm? Foreign court case law obviously is not controlling. But even the worst of Anthony Kennedy's odes to foreign law do not treat foreign law as controlling U.S. interpretation. (The concern of conservatives is simply that, in Kennedy's case, they are able to exert too strong an influence over a weak, tractable mind that is concerned with how folks think about him. But one could as well -- and probably rightly -- have the same concern about the undue influence of the New York Times on Justice Kennedy.)

Finally, on the overall balance of payments: Who cares? I suppose if we are concerned with what foreign judiciaries think of us, we will want to be in-demand suppliers; but we will also try to nourish our foreign markets by opening up our domestic market to their products. In general, we will want more trade. And, I suppose, we will want to gratify ourselves that we should end up being net exporters.

But if we are relatively unconcerned with foreign opinion, and seek to buy only what we cannot produce relatively more efficiently here, the law of comparative advantage (if I remember my basic econ correctly) would seem to favor importation of foreign law only for the purposes of deciding disputes in U.S. courts that turn on the meaning of foreign law. We should buy at home that which we can produce relatively more efficiently at home.

That foreign judicial systems may be realizing this law of comparative advantage, too, probably should be cause for approval, and not at all a cause for concern.

Full post as published by Balkinization on September 18, 2008 (boomark / email).