Academic

The Decline of the Supreme Court?s Influence

By Sherrilyn Ifill

As the sun sets on America?s financial empire, it?s probably worth spending a moment noting that the U.S. has lost its international position in one other area as well.  I?m referring to a story in last week?s New York Times which reported that the U.S. Supreme Court is no longer revered around the world for its legal decisionmaking.  Simply put, foreign courts no longer look to the decisions of the U.S. Supreme Court for guidance.  http://www.nytimes.com/2008/09/18/us/18legal.html?ei=5070&emc=eta1

            The hostility of some of our Supreme Court justices, in particular Justice Scalia, to considering the decisions of foreign courts? even about matters of international law ? has rightly led other Courts to increasingly ignore the decisions of our Supreme Court.  Chief Justice Roberts is also opposed to citing foreign law in the Court?s decisions — reportedly in part because foreign judges are ?not accountable to the American people.?  When last I checked neither are federal judges.  That?s why in accordance with the Constitution they receive lifetime tenure and salaries that cannot be diminished.  Our federal courts were supposed to play a counter-majoritarian role, issuing decisions that often run directly against the will of the people in the interests of upholding the rule of law.  And remember, we?re not talking about following the decisions of foreign courts, we?re talking about citing decisions from foreign countries as support for the reasoning in our own decisions.  Behaving as though our decisions will get the jurisprudential cooties from merely being informed by the reasoning and decisions of foreign courts has got to be among the most absurd examples of irrational U.S. isolationism.     

            It also doesn?t help that the most quoted justice on the Court often comes off like a petulant bully.  The sober and disciplined reflections of Justices Ginsburg, Breyer and Kennedy rarely get the same ink as the pithy, intemperate remarks of Justice Scalia.  When Scalia defends the Court?s decision in Bush v. Gore with ?get over it,? as he did in an internationally noted interview on 60 Minutes this year, or snapping off one-liners about torture in a BBC interview http://news.bbc.co.uk/2/hi/americas/7239748.stm , it doesn?t give listeners the sense that this is a Court that has respect for the views of even its owns citizens, let alone those of foreign judges. 

            But it is surely not the truculence of the Court?s most vocal curmudgeon that has diminished the Court?s reputation around the world. The integrity of the entire American legal tradition — not just the Supreme Court — has been imperiled by the Bush Administration?s brazen defense of torture and its flouting of long-recognized international legal obligations.  Those who?ve advanced the most extreme views within the Administration have been lawyers ? some operating at the highest levels in the Department of Justice.  These individuals have thrown our nation?s entire legal system into disrepute around the world. It?s no surprise that a justice on one nation?s high court called the U.S. something of a ?legal backwater? in the area of human rights.  The waning influence of the Supreme Court?s jurisprudence may just be the most prominent and well-known casualty of this Administration?s cavalier disregard for laws that are designed to protect us from the worst impulses of government.  It doesn?t help that the Court itself was unable in the early cases challenging the detention of enemy combatants to article a forceful and clear set of legal rules about the limits of executive power in the so-called war on terror that perhaps might have derailed the Administration?s wholesale descent into lawlessness.

            Now increasingly the world may look to the Supreme Court of Pakistan, where the defiance and courage of Chief Justice Mohammed Chaudhury ignited a lawyers? movement to fight for the independence of the judiciary.  South Africa?s Constitutional Court has likewise shown itself to be courageous and principled in putting the rule of law and adherence to constitutional principles above partisanship and deference to executive power. 

            As America veers towards a recalibrated position in the world as an Emperor ?  while perhaps not entirely naked, certainly in a state of immodest undress ? the world has an opportunity to look to the courts of other countries, where with considerably fewer resources and with shorter and sometimes shaky democratic traditions (and using constitutions often modeled on our own) justices on the highest courts are earning the respect of jurists all over the world.

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Full post as published by BlackProf on September 22, 2008 (boomark / email).