The Duck of Minerva

Courting Influence


17 September 2008

The NY Times has a very interesting article out today reporting that the influence of the US Supreme Court is waning–internationally. While the Court holds no jurisdiction beyond the US borders, for a long time it served as an intellectual leader in world judicial opinion. Other nations looking to develop a strong judicial system looked to the US Supreme Court as a model, and looked to the Court’s opinions as cutting-edge legal thought that could–and did–shape legal arguments elsewhere.

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.

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

Interesting enough, while the US Courts serve as a source for other countries legal arguments, US judges don’t often rely on International Law. Some, like recently retired Justice Sandra Day O’Conner or current Justice Anthony Kennedy, would like to see a greater use of international law. But, as one scholar observed

“We are used to encouraging other countries to adopt American constitutional norms, “ he wrote in an essay last month, “but we have never accepted the idea that we should adopt theirs.”

“It’s American exceptionalism,” Professor Posner added in an interview. “The view going back 200 years is that we’ve figured it out and people should follow our lead.”