It may well be true that the U.S. Supreme Court is losing its influence in the wider world. But you won’t find much evidence for the proposition in the latest (and probably last) installment of Adam Liptak’s generally praiseworthy “American Exception” series in The New York Times.
The article, headlined “U.S. Court, a Longtime Beacon, Is Now Guiding Fewer Nations” and published on page one of the September 18 edition, argues that “a diminishing number of foreign courts seem to pay attention to the writings of American justices,” while attempting to link this trend to the domestic debate over whether the Supreme Court should ever cite foreign law. But in 2,500 words, the piece gives only two concrete pieces of evidence for the apparent trend—statistics about declining court citations in Canada and Australia.
Meanwhile, the article proposes at least six possible causes, without doing much to demonstrate the validity of any of them. Perhaps American legal influence is declining because the new authority of the European Court of Human Rights has rendered U.S. Supreme Court decisions irrelevant in certain crucial areas; or because “new and sophisticated” constitutional courts elsewhere have little regard for the old ways; or because slightly older constitutional courts are maturing and developing their own bodies of precedent; or because the unpopularity of the Bush administration has led foreign courts to snub American judgment; or because the Rehnquist and Roberts courts’ conservatism is out of sync with the prevailing international liberalism; or because some U.S. Supreme Court justices vocally oppose citing foreign law, making foreign judges want to return the favor.
This last suggestion is the most innovative. And while the article devotes nearly 1,000 words to a largely familiar discussion of the pros and cons of citing foreign law, it is strangely nonchalant about establishing a connection between the U.S. Supreme Court’s resistance to foreign citations and a reciprocal neglect by foreign judges. As Michael Stokes Paulsen, a professor of law at the University of St. Thomas, writes on the Balkinization law blog, “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.”
Even the two pieces of evidence the article manages to muster for its central claim seem shaky:
From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an 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, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.
Are these numbers significant or not? At least the Canadian statistic consists of nineteen data points. But do the two data points borrowed from the Australian study demonstrate a meaningful trend?
Russell Smyth, the economist who performed the study, wanted to analyze citation patterns over a century, so he counted citations from one year in each decade as a representative sample: 1905, 1915, 1925, and so on, through 2005. He found that between 1905 and 1975, the number of American citations never rose above sixteen; in both 1965 and 1975 the number was twelve. But ten years later, in 1985, it jumped all the way up to 105. In 1995 it jumped again, to 208.
Why the large increases in 1985 and 1995? And is the decline in 2005 significant? “I think Adam Liptak has used my study in a slightly misleading way,” Smyth told me over e-mail. The 2005 decline should be considered in light of the 1985 and 1995 increases, he said, which followed directly from the passage of the Australia Act of 1985-1986, severing the remaining legal ties between Australia and the United Kingdom. It was, Smyth said, “the beginning of attempts to forge a national legal identity” and led to greater citation of foreign, but non-British, jurisprudence.
As for the 2005 decline, Smyth doubts its significance as an indicator of American legal influence. Australian state courts cite relatively few foreign decisions, period: those 208 citations from 1995 were only 1.37 percent of the total citations, foreign and domestic. (The seventy-two from 2005 were 0.47 percent of the total.) The Australian High Court may well still be citing as many American cases as ever, Smyth said. (A study of High Court decisions shows a continuing upward trend in various sorts of American citations through 2000.)