Jurisprudence, American Style

Are foreign jurists really starting to ignore the Supreme Court?

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.)

Are the Canadian numbers more persuasive? Peter McCormick, a Canadian political scientist and the author of a statistical analysis of Canadian Supreme Court citations, told me that in Canada, too, there was a large increase in American citations in the 1980s and 1990s that makes the decrease of the 2000s seem less significant. Looking at a graph of the past century, he said, “the general feeling is a long-term level at 3% or below, with a temporary ‘blip’ of a dozen or so years centered on 1990.” His best explanation for the blip is the passage of the Canadian Charter of Rights and Freedoms in 1982, combined with the presence in the 1980s and 1990s of several Canadian Supreme Court justices who earned graduate law degrees in the United States. (The last of this group left the bench in 1997.)

Based on his research, McCormick found it particularly unlikely that Canadian judges were hesitating to cite the U.S. Supreme Court because of its current conservatism. “The citations are splendidly scattered across a very extended period, and across a very broad range of judges,” he said. “So if I am a [Canadian Supreme Court] judge who knows the US jurisprudence and I feel like citing that Court even though I don’t like its current or recent direction, I can just keep looking until I find a judge (or at least a finding or a rationale) that I do like.” The most frequently cited U.S. Supreme Court justice, through the 2000s, was Byron White, who served between 1962 and 1993. Justice Horace Gray, who served from 1882 to 1902, was in the top ten.

Despite its flaws, Liptak’s article collects a number of strong quotations and makes some worthwhile points. In one of the article’s most persuasive moments, we are reminded why the worst fears about foreign citation are overblown:

The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it. … Indeed, American judges cite all sorts of things in their decisions—law review articles, song lyrics, television programs. State supreme courts cite decisions from other states, though a decision from Wisconsin is no more binding in Oregon than is one from Italy.

But the extended discussion of the controversy over foreign citation mostly serves to muddy the article’s core argument. Indeed, no one quoted in the article asserts the connection that Liptak wants to make between American justices being reluctant to cite foreign precedent and foreign judges declining to cite them in return. (Former U.S. Supreme Court Justice Sandra Day O’Connor comes the closest when she says, “When U.S. courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced.”)

At a crucial point early in the article, a misleading arrangement of quotes gives the incorrect impression that Australian High Court Justice Michael Kirby is making this connection. The article quotes former Israeli Supreme Court Chief Justice Aharon Barak as saying that the U.S. Supreme Court “is losing the central role it once had among courts in modern democracies,” and then immediately quotes Kirby as follows:

Justice Michael Kirby of the High Court of Australia said that his court no longer confined itself to considering English, Canadian and American law. “Now we will take information from the Supreme Court of India, or the Court of Appeal of New Zealand, or the Constitutional Court of South Africa,” he said in an interview published in 2001 in The Green Bag, a legal journal. “America” he added, “is in danger of becoming something of a legal backwater.”

Kirby’s final pronouncement sounds like it means that the Australian High Court no longer has much use for the U.S. Supreme Court. But in the full interview, it is clear that what Kirby means is that by ignoring the rest of the world, America is impoverishing its own legal imagination:

The best thoughts, the most creative thoughts, will come from outside of your magic circle. It’s therefore important to stimulate your mind with analogous reasoning. … One problem in the United States, in my experience, is that lawyers are not as stimulated as in other countries by external forces that really challenge their thinking. England, which is the source of the legal system in both our countries, is being fundamentally challenged now because of its association with Europe and the civil law system. Other countries, similarly, are being challenged by the forces of globalism. America is in danger, I think, of becoming something of a legal backwater in a world of such radical global changes, and it’s not good enough simply to go to a lawyers’ conference in London and feel like you’ve been globalised. You’ve got to realize that the legal systems of Asia, Latin America and Africa are speaking to us as well.

This notion that attention to foreign jurisprudence can stimulate good legal thinking, which Barak also asserts, is an interesting one, and Liptak might have written a more focused article about whether, as some believe, U.S. Supreme Court decisions are becoming increasingly narrow and esoteric, and the causes and implications of that trend for both American and foreign jurisprudence.

An article that considered how the quality and substance of U.S. Supreme Court decisions have changed over time might have left room for another reason that foreign judges may be less inclined to cite American decisions. As Mark Tushnet, a professor at Harvard Law School, wrote to me in an e-mail,

High court judges around the world are now talking not about U.S. Supreme Court influence, positive or negative, but regretfully about the failure of U.S. constitutional jurisprudence to contribute to thoughtful reflection on what those judges see to be common problems of constitutionalism. It’s not just statistics about citation, but a considered judgment that U.S. constitutional jurisprudence is not useful in a way that it had been earlier.

I’d like to read that article.

Joshua J. Friedman is a former editor of The Atlantic Monthly and Boston Review.