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When Judges Make Foreign Policy focuses on two decisions from the last Supreme Court term and how they reflect ongoing ideological conflicts in how Justices view international law and the U.S. Constitution.

The two decisions were Boumediene v. Bush & Medellín v. Texas. Both cases required the Court to consider the role of international law in the U.S. judicial system.

The article is interesting in that it endorses a court that acts in an ‘activist’ manner – looking for legal justifications that lead the country in different directions depending on what is ‘good’ for the country.

(It seems like I’m constantly referring to articles from the New York Times. They have had unusually good coverage of the legal aspects in international affairs lately.)

Courts around the world have looked to the United States’ Supreme Court decisions and modeled their own legal systems based on those outcomes.

There were several reasons listed for this. For example, the rise of constitutions after World War II, in countries whose legal traditions had never functioned with anything larger than a civil code, left foreign courts seeking guidance. The court systems in these countries suddenly found themselves weighing constitution challenges – something the U.S. Supreme Court has been doing since Marbury v. Madison. That’s two hundred years of detailed legal analysis that these courts relied on again and again.

But this is not the case anymore. With U.S. diplomacy waning and our human rights approach conflicting with the civil liberties policies of other democracies, foreign courts have turned away from American jurisprudence and are seeking guidance elsewhere.

More often, these foreign courts are looking to the Canadian Supreme Court, the Constitutional Court of South Africa, and the European Court of Human Rights.

The world no longer looks to the U.S. as a model for how to behave or how to protect their own citizens. I find that profoundly depressing.

What does this mean to you, the reader?

If U.S. law becomes increasingly disparate and isolated from legal trends in the rest of the world, we will find it difficult to convince other countries to cooperate with us in a variety of matters.

We’ve already had past difficulty getting suspected criminals extradited to the U.S. from other countries due to our use of the death penalty. Here’s one example from the BBC, about the difficulties of extraditing a narcotics criminal from Brazil.

The farther we let the our legal norms diverge from the norms of the rest of the world, the more the rest of the world will turn their back on the U.S.

What can we do? Are we to blindly copy the legal decisions of the rest of the world, replacing our own law with theirs?

No. That is an abdication of the responsibilities voluntarily assumed by judges and lawmakers to uphold the Constitution and laws of the United States.

But what we can give serious consideration to the legal reasoning of foreign courts. Let our legal scholars and lawmakers weigh the logic and ideas of foreign courts. Let’s use the knowledge of the whole world to test our ideas of justice and fairness.

Justice can be found in a court room on the other side of the world, and we would be blind not to acknowledge a new and novel way of finding that justice just because of where it was uncovered.

The U.S. used to lead the world in tackling the difficult legal problems of the modern age. Just because we are no longer the only place to which the world looks for guidance, is no reason to let ourselves be left behind.

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