Interesting article using data (!) to show that the influence of the Supreme Court Of The United States (SCOTUS) is waning, and quickly.
Among the reasons – foreign and international tribunals are more sophisticated, they are quoting each other, and the US decisions are less in keeping with foreign beliefs. However, there is a strong anti-foreign influence (I call it “the Pat Buchanan effect”). From the piece:
The adamant opposition of some Supreme Court justices to the citation of foreign law in their own opinions also plays a role, some foreign judges say.
“Most justices of the United States Supreme Court do not cite foreign case law in their judgments,” Aharon Barak, then the chief justice of the Supreme Court of Israel, wrote in the Harvard Law Review in 2002. “They fail to make use of an important source of inspiration, one that enriches legal thinking, makes law more creative, and strengthens the democratic ties and foundations of different legal systems.”
Partly as a consequence, Chief Justice Barak wrote, the United States Supreme Court “is losing the central role it once had among courts in modern democracies.”
So what our staunchest ally’s Chief Justice is saying is this: xenophobia is ruining American jurisprudential influence over the world.
Thinking historically, the US Supreme Court is the oldest Consitutional court in the world, making its influence significant. That means we have been giving our ideas away. Moreover, we have always taken ideas in from other countries and adopted and adapted them. Fast forward to today, and Justices Roberts and Alito have said, unequivocally, that they oppose using foreign court opinions to influence their thinking.
WHAT?
A good idea is a good idea no matter where it came from. A thoughtful perspective is thoughtful no matter what language it was said in. Imagine if our Founders (who the forementioned Justices claim to be reading the intent of) refused to take ideas from the French, or English, or the Native Americans. We would have no law. No common law. No civil law. No Constitutional law. Heck, the very concept of habeas corpus, written into our Constitution, is a principle articulated in another document – the Magna Carta – and articulated through over 500 years of British jurisprudence until the exalted Founders were born.
So I call bullshit on not sharing. It’s selfish, stupid, and a sure sign of the end of American superiority. If we’re so afraid that borrowing other ideas dilutes American ones, then “these colors DO run”, to turn a phrase around. The whole point of the American Constitutional design is that the power of ideas weighs more strongly than blood, creed, or nationality. The American dream that I learned about was the one where merit matters, not citizenship.
Ask a good professor, inventor, or economist if sharing ideas is good. They will all say yes. American innovation is borne out of synthesis. It is borne from something being greater than the sum of its parts. It is borne out of the fundamental kindergarten idea – sharing is good. Why? It also reflects an American idea, that participation is good, and necessary. Americans, particularly our supposed intellectual leaders, need to participate in the worldwide marketplace of ideas, lest WE become the 21st century version of the old world our Founders extricated themselves from: slow, plodding, and selfish.
To my mind, this thinking is indicative of an empire into decline. The moment an non-expansionist empire (which we are) thinks itself so superior that it does not need to even consider the points of views of outsiders, the decay is well under way. If that superiority is borne out of xenophobia, then the empire is already afraid that it can no longer sustain itself.
Luckily, there are ways to forestall the decay, intellectually speaking. Share. And share some more. Foreigners who meet Americans always find them to be among the most hospitable people they’ve ever met. That is because we like to share. But sharing is a two way street – we need to take as good as we give.
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