The Supremes' Loss of Influence

Here is an article from the New York Times by Adam Liptak describing the United States Supreme Court's "waning" influence among courts around the world. Liptak cites figures from Canada and Australia to buttress his argument that other countries' courts have become reluctant to cite the United States Supreme Court, preferring instead to "cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment." Liptak points to a number of factors that have contributed to the Court's "fading influence." Among them are the "rise of new and sophisticated constitutional courts elsewhere," which are "generally more liberal that [sic] the Rehnquist and Roberts courts ..."; the United States's "diminished reputation" due to the Iraq war, embrace of torture, and perceived lack of respect for international law; and some Supreme Court justices' "adamant opposition ...to the citation of foreign law in their own opinions ... " Those opposed to the citation of foreign law sometimes point to American exceptionalism as a reason. Professor Steven Calabresi, a co-founder of the conservative Federalist Society, argued in a 2006 article that the "Supreme Court should be wary of citing foreign law in most constitutional cases precisely because the United States is exceptional. 'Like it or not,' he wrote, 'Americans really are a special people with a special ideology that sets us apart from all the other peoples.'" This argument strikes me as arrogant. Even if the United States is exceptional, can we not learn from the jurisprudence of other countries? No judge who has cited foreign authority has argued that it was binding; at the very most, it may help to illuminate and provide a different perspective on the issues before the Court. Why should this be a threat? Chief Justice Roberts and Justices Alito and Scalia are on record as opposing the citation of foreign legal opinions. To the extent that their viewpoint carries the day and causes the Supreme Court to slip further in the estimation of the international legal community, it will be yet another unfortunate legacy of the Bush years.