If Brett Kavanaugh is confirmed another battle will be over
As the US supreme court turns inward, the rest of the world is in turn paying less attention to it
Judges, unlike politicians, don’t owe their positions to popular endorsement. Still, like politicians, they tend to reflect how their societies think. That shouldn’t be surprising: judges are formed by the same generational influences as everyone else. And they are, after all, selected by politicians in power. Some judges, such as Sandra Day O’Connor, whose position as the crucial swing vote made her the US supreme court’s most influential member in the Rehnquist years (and probably the most influential woman in America in the 1990s), would quite openly opt not to go much farther in her decisions on contentious issues than where she intuited public opinion to reside. Other judges do the same but don’t admit to it, sometimes not even to themselves.
And so, as societies evolve in their thinking, so do courts – even when the constitutions that guide them stay the same. The best-known illustration of the idea that judges reflect prevailing prejudices and fashions is the US supreme court itself, where the liberal activism of the Swinging Sixties has given way to a bitterly polarised battle between two factions that barely speak the same language. On the court as in Congress, the conservatives are ascendant. And they are radical – their animating doctrine is originalism, the Wahhabism of constitutional interpretation, which holds that a judge’s job is to divine the original intent of the drafters.
The isolationists will have prevailed over the internationalists
If Brett Kavanaugh – or any other right-winger of Donald Trump’s choosing – is confirmed to fill the seat vacated by Anthony Kennedy, another, less talked-about, battle will be over. The isolationists will have prevailed over the internationalists. Kennedy’s influence was due to his status as the swing vote between liberals and conservatives, but his openness to the world outside the US also made him a rare species among modern republican appointees. A keen traveller and Europhile, he rejected the so-called “exceptionalism” that saw foreign or international law as irrelevant to the American experience and enthusiastically drew on what courts in other countries had to say. Day O’Connor, also a republican appointee of another era, was similarly receptive to outside influence. But with Kennedy now gone, the internationalist camp is made up entirely of Democrat appointees – Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. The fourth liberal, Sonia Sotomayor, assured senators at her confirmation hearing in 2009 that she would not rely on foreign law, although at least 18 republicans who voted against her cited a belief that she would do just that.
Of course, the US court is forced to engage with the world beyond America’s borders all the time. Globalisation, technological change and the rise of international institutions has made engagement with foreign and international law unavoidable. But the republican majority rejects any reference to foreign cases in interpreting the Bill of Rights. Chief Justice John Roberts, as well as judges Clarence Thomas and Samuel Alito, have all denounced reference to overseas law as a threat to the US’s tradition of democratic self-governance.
Irish judges such as Cearbhall Ó Dálaigh and Brian Walsh developed friendships with their American counterparts and drew on their decisions
As the court turns inward, the rest of the world is in turn paying less attention to it. In the postwar decades, judges around the world looked to the US supreme court for inspiration. Irish judges such as Cearbhall Ó Dálaigh and Brian Walsh developed friendships with their American counterparts and drew on their decisions. The judicial expansionism of the US court in the 1960s was mirrored by the activism of the Irish court at the time. Those personal connections still exist, but it’s rare today to see an Irish court cite a US decision. The late Antonin Scalia used to come to Ireland and meet Irish counterparts for a drink and a sing-song, but few Irish lawyers took his pungent judgments seriously for anything other than their comedy value. In this, Ireland is not alone. The US court, once a beacon of light for emerging states, is now largely ignored by the much of the world’s judges.
Out of step
That waning influence is partly due to the rise of sophisticated constitutional courts elsewhere. But it’s also because the US court is increasingly out of step. The tendency in much of the West has been towards greater liberalisation, especially on human rights. On questions of equality, liberty, torture or discrimination, courts in developed democracies are more likely to cite the European Court of Human Rights and to find that the increasingly conservative and unimaginative US court has little of value to say. Overtly political decisions, such as the one that gave George W Bush the presidency in 2000, and the retreat into originalist fundamentalism, have added to its growing global irrelevance.
The court’s damaged reputation is hard to disentangle from the diminished standing of the US in general, however. The decline in foreign citations of its decisions was often remarked on during Bush’s presidency, when the US was unpopular abroad. Trump’s misrule has brought that reputation to unexplored depths.
The world was rapt by the horror-show of Kavanaugh’s confirmation this month. It will have far less interest in what he has to say from now on.