The U.S. Supreme Court is increasingly citing decisions by foreign courts. I don’t like the practice, for a variety of reasons that I’ll sketch briefly. But I must first make clear that I don’t object to all such citations. For example, sometimes foreign law supplies the rule of decision for a case in an American court; or sometimes a foreign judicial opinion contains an interesting argument or datum worth citing with credit to the original. My objection is to citing a foreign decision as authority in a case involving U.S. domestic law, e.g., the U.S. Constitution; in other words as a precedent, that is, as a reason for following it that is independent of its intrinsic persuasiveness; as evidence, in short, for a budding international consensus that should influence U.S. law.
My objections are numerous but I am going to mention just ones that relate to what I said yesterday, in my response to comments on my first posting, about the judicial process. The first is that it is undemocratic to subject Americans to even the limited rule of foreign courts, except to the extent that treaties or other conventional sources of international law authorize the delegation of lawmaking to foreign bodies. There is a profound political difference between even an appointed, life-tenured U.S. federal judge and a judge of a foreign country. The U.S. judge is appointed by an elected official (the President) and confirmed by an elected legislative body (the Senate) and is subject to removal by impeachment, and his court is subject to budgetary and other controls and influence by Congress. If he is a lower-court judge, he is influenced by the President’s authority to nominate him to a higher court. He is in short a part of a system of checks and balances; he has a degree at least of democratic legitimacy. A foreign judge is not subject to any political process within the United States.
Second, legal principles are not instantiations of a universal moral law, but the product of local political, cultural, and historical circumstances. Without a deep study of foreign legal, political, and social systems–a study that few U.S. judges or justices, or for that matter academics, have made or are capable of making–it is impossible to determine whether a foreign decision on gay marriage, abortion, hate speech, capital punishment, religious establishments, etc. is the product of a reasoning process, values, ideology, or other circumstances that are the same or similar in the United States. Gay marriage is the most obvious current example. The opposition to it in the United States is largely though not entirely religious in origin, and so in countries that are much less religious than the U.S. opposition is muted; but this says nothing about whether the U.S. position is "wrong" because out of step with these other countries.
Third, the citation of foreign decisions is a form of figleafing, reflecting the efforts of opinion writers (often law clerks still suffering from the misconceptions of law students) to escape responsibility for stating the true grounds of decision. A judge or justice who votes in favor of homosexual rights is reluctant to admit that he is doing so not because the Constitution commands that he do so but because he is sympathetic to homosexuals or minorities in general, or dislikes the motivations or beliefs of the people who object to homosexual rights, or never misses an opportunity to invalidate unequal treatment, or thinks homosexual rights the new liberal frontier. If instead he can point to an emerging international consensus (as the Supreme Court did in invalidating capital punishment of 15 year olds), he can minimize the appearance of subjective decisionmaking by pointing to something outside his personal values, politics, emotions, and ideology. It would not be figleafing if American judges really were willing to take their cues from foreigners, but I don’t believe it. Almost the whole world prohibits hate speech, but in the U.S. it is considered constitutionally privileged and the fact that we are out of step with the rest of the world seems not to bother any of the judges who cite foreign decisions.
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