The Supreme Court’s Reliance upon Foreign Law

Although the Supreme Court has been citing foreign law for 200 years, over time the references have become more common, with the rate of citation dramatically increasing in the past 10 years (Zaring Reference Zaring2006; Farber Reference Farber2007; Black, Owens, and Brookhart Reference Black2014; Stobb Reference Stobb2018). Identifying incentives driving this trend, scholars argue that justices employ foreign law selectively to support controversial rulings. Following the strategic model of judicial decision-making, judicial specialists posit that judges seek to pursue policy goals but are constrained in this behavior by various norms and actors, particularly by the reality that the Court must rely upon others to effectuate its decisions (Epstein and Knight Reference Epstein1998).

Justices know that key actors are more likely to implement well-supported decisions because they appear more legitimate (Canon and Johnson Reference Canon1999; Black, Owens, and Brookhart Reference Black2014). They alter their behavior in numerous ways to address these concerns. For instance, the Court will speak with a unified voice to gain adherence (Benesh and Reddick Reference Benesh2002), and modify its behavior to address legitimacy threats stemming from negative public opinion and a hostile Congress (Casillas, Enns, and Wolfarth Reference Casillas2011; Owens, Wedeking, and Wolfarth Reference Owens2013). Justices will also carefully craft the language to be as persuasive as possible, recognizing that their opinions will be scrutinized, particularly in hard cases (Hume Reference Hume2006; Corley and Wedeking Reference Corley2014). The Court will strategically alter opinion content, using more authoritative language (Corley and Wedeking Reference Corley2014) and adapting the clarity of its opinions based on expected reactions from their various audiences (Black et al. Reference Black2016). In addition, justices tactically select rhetorical sources to cite, including the Federalist papers, the Founders’ writings, and Blackstone’s Commentaries (Corley et al. Reference Corley2005; Hume Reference Hume2006).

Most importantly for the present study, evidence indicates that justices are more likely to rely upon foreign law when they invalidate laws, overturn precedent, and render ideologically motivated decisions (Black, Owens, and Brookhart Reference Black2014; Black et al. Reference Black2014). Judges unable to find needed justifications domestically look abroad to reinforce the logic of their arguments, portraying their opponents as dissenting from international consensus (Black, Owens, and Brookhart Reference Black2014; Black et al. Reference Black2014). Specifically, justices look to foreign law and practice to seek alliances, demonstrating that “other countries have made the same legal choices as those advocated in the case” (Black et al. Reference Black2014, 894). Moreover, they focus their attention on foreign law that is likely to be persuasive, citing most often sources from countries like the United States—democratic, wealthy, and English speaking—and US allies (Black, Owens, and Brookhart Reference Black2014; Black et al. Reference Black2014). The belief that reliance upon foreign law will improve the reception of an opinion appears to cross ideological lines; both liberal and conservative justices employ the practice (Black, Owens, and Brookhart Reference Black2014; Black et al. Reference Black2014). This evidence suggests that justices believe the rewards of reliance upon foreign law exceed the cost of the controversy it engenders. I investigate whether this trust is well-placed.

Lower Court Response to Supreme Court Reliance upon Foreign Law

While justices likely use this tactic to obtain the cooperation of both public and private actors (Baum Reference Baum2006), judges within the court hierarchy are a particularly important audience for Supreme Court opinions, as their decisions are official interpretations (Canon and Johnson Reference Canon1999). The manner in which future Supreme Courts construe prior opinions affect the decisions’ vitality, or legal authority (Hansford and Spriggs Reference Hansford2006). The decision’s vitality, combined with the congruence of the case with justices’ policy preferences, will impact whether a Supreme Court justice will interpret it positively in the future (Hansford and Spriggs Reference Hansford2006). Scholars find significant variation in the Supreme Court’s citation to its own precedent (115).

Lower courts can also refine the original holding by either enlarging or limiting it (Canon and Johnson Reference Canon1999). Although the norm of stare decisis mandates that courts follow Supreme Court legal doctrine in cases with similar factual circumstances, judges can circumvent binding precedent, choosing whether to treat it positively, negatively, or neutrally (Canon and Johnson Reference Canon1999; Hansford and Spriggs Reference Hansford2006). As defined by Shepard’s Citations, a valid and reliable source on the treatment of Supreme Court opinions, a positive interpretation of a case occurs only when the court cites the precedent as controlling (Hansford and Spriggs Reference Hansford2006). Lower courts negatively treat a precedent by questioning, limiting, criticizing, or distinguishing it (Hansford and Spriggs Reference Hansford2006). In doing so, they alter the meaning of the rules set by the Supreme Court (Black and Spriggs Reference Black2013). Because the importance of the justices’ opinions lies in the doctrines they produce (Clark and Lauderdale Reference Clark2010), these interpretations affect the extent to which the justices’ policy choices will determine outcomes in future cases. Although research indicates that lower courts tend to follow Supreme Court rulings (see Johnson Reference Johnson1979; Gruhl Reference Gruhl1980; Songer and Sheehan Reference Songer1990; Benesh and Reddick Reference Benesh2002), they do not always follow the high court’s direction and can ignore its precedents (Peltason Reference Peltason1971; Canon and Johnson Reference Canon1999).

As noted above, judges receive a benefit from relying upon foreign law in the form of an increase in the noteworthiness of the opinion (Stobb Reference Stobb2018). Reliance upon foreign law is associated with a significant rise in the total number of citations to a decision across all three levels of the judicial hierarchy (Stobb Reference Stobb2018). This finding indicates that reliance upon foreign law significantly affects the extent to which a decision influences outcomes in future cases and the development of the law in general. However, this prior work did not measure whether the practice is associated with an increase in the degree to which lower courts follow or defer to a Supreme Court opinion, a phenomenon examined in studies of compliance (Corley and Wedeking Reference Corley2014). The unit of analysis must therefore be the lower court decision citing a Supreme Court precedent (in other words, the circuit court opinion–Supreme Court opinion dyad), not the Supreme Court precedent as employed by Stobb (Reference Stobb2018). By studying the factors influencing lower court deference to Supreme Court precedent, we can better understand the extent to which the norm of stare decisis prevails. Adherence to this norm is one of the main ways that courts differ from other policy makers (Hansford Reference Hansford2017).

I expect that reliance upon foreign law will not increase deference to Supreme Court precedent for several reasons. First, justices employ the tactic without engaging with the reasoning of the foreign sources. Factors shown to be associated with an increase in positive citations tend to “enable the reader to understand and accept the judge’s decision” (Corley and Wedeking Reference Corley2014, 38). Thus, more readable opinions are more likely to be treated positively (Black et al. Reference Black2016). In contrast, reliance upon foreign law (apart from references to English common law) is almost always done without a discussion of the reasoning underlying the foreign practice (Calabresi and Zimdahl Reference Calabresi2005; Simon Reference Simon2013). Evidence suggests that foreign law has increasingly played the role of consensus identification, or supporting the application of a rule for which American consensus did not exist (Simon Reference Simon2013, 290). Recently, judges have looked to foreign practices to support overturning American precedents on the basis of changing societal values without engaging with the reasoning underlying foreign law (Calabresi and Zimdahl Reference Calabresi2005; Simon Reference Simon2013). As noted above, when justices rely upon foreign law, they explicitly or implicitly argue that countries like the United States (i.e., democratic, wealthy, and English speaking) and US allies have chosen the same legal approach as the justices advocate (Black et al. Reference Black2014, 894). Thus, justices argue that US courts should make the same choices as those made by foreign officials because those societies are like American society in essential respects, and should do so without exploring why other countries made these decisions or how the situation abroad may differ from that in the United States.

This is particularly true in constitutional cases. For example, in Thompson v. Oklahoma (487 U.S. 815 [1988]), the plurality cited to the views of “other nations that share our Anglo-American heritage, and by the leading members of the Western European community” to support its decision that imposing the death sentence for an act committed at age 15 “would offend civilized standards of decency.” Similarly, in Roper v. Simmons (543 U.S. 551 [2005]), the Court referred to the views of the world community. In both cases, the Court simply added a citation to a foreign law or practice. The references may be given in a footnote. Thus, in a number of cases, justices have referenced foreign law without describing foreign practices in detail or, more importantly, providing the factual circumstances surrounding the practice that would enable clear analogies to the American context.

Second, although the Court asserts that the citation provides evidence of a principle generally accepted by mankind, it recognizes that foreign law is not controlling in US decisions but is rather persuasive authority. Scholars provide evidence that increases in the authoritativeness of opinion language induces compliance because it enhances source credibility, making it appear that “the judge has no choice” (Corley and Wedeking Reference Corley2014, 39). Although the certainty of the language and the use of foreign law are two different phenomenon, the reason that less authoritative language is associated with less compliance also supports the expectation that the reliance upon foreign law will not gain positive legal treatment. Justices’ assertions that foreign law is not binding undermines effectiveness; they admit that they do have a choice. Again, the clearest examples must be taken from constitutional cases. In Atkins v. Virginia (536 U.S. 302 [2002]), the Court cited foreign law in a footnote to support its identification of an American consensus against imposing the death penalty on the mentally disabled. The Court noted only that the finding was consistent with the views of the world community, citing an amicus brief submitted for the European Union, and explicitly recognized that foreign sources were not dispositive. Although Justice Breyer has drawn on foreign law several times to contend that the death penalty violates the Eighth Amendment prohibition of cruel and unusual punishment, he has taken great pains to assert that he relies “primarily upon domestic, not foreign events” in his argument (Glossip v. Gross, 135 S. Ct. 2726 at 2775 [2015], Breyer, J., dissenting). Even vocal supporters of the use of foreign law, like Breyer, do not provide the needed rhetoric to persuade legal audiences.

Third, the degree of controversy over the practice is likely to undercut the persuasive power of such references. Members of the Court, particularly Justice Scalia, have been known to vehemently attack the majority’s reliance upon foreign law in their dissents. For example, in his dissent in Atkins, Scalia awarded the “Prize for the Court’s Most Feeble Effort to fabricate national consensus … to its appeal to members of the ‘so called world community’ … whose notions of justice (thankfully) not always those of our people” (536 U.S. at 347, Scalia, J., dissenting). In Roper, Justice Scalia argued that the justices in the majority selectively choose only foreign law favorable to their view. Scalia then discussed in depth the laws of other countries differing in important respects from American practices (575–77, Scalia, J., dissenting). Scalia alleged that judges manipulate citation to foreign sources to impose their morality on the American public. Such sharp criticism is likely to undercut the power of the majority’s reasoning.

In addition, lower court judges have characterized the tactic as a sign of ideologically motivated decision-making that undermines the courts’ legitimacy with the American public and within the judiciary (Wilkinson Reference Wilkinson2004). Appellate court judges have referred to the practice as a “form of judicial fig-leafing”; justices dig for citations to support their positions to “disguise the political decisions that are the core … of the Supreme Court’s output” (Posner Reference Posner2004). Chief Justice Dennis Jacobs (Reference Jacobs2010) of the Second Circuit—identified by Zaring (Reference Zaring2006) as the appellate court outpacing its brethren in citation to foreign law—argued that “foreign law is not much used by judges unless they can’t find what they want domestically and locally … one has the impression that judges are looking to foreign law in order to find support for their own inclinations.” Jacobs (Reference Jacobs2010) argued that the more judges seize upon and attempt to resolve salient and controversial issues, the more they “make it up as they go along,” and can often only find needed authority abroad. The practice has sparked controversy outside the legal academy, inspiring Congress to propose legislation and voters to pass state constitutional amendments limiting the use of foreign law (Buys Reference Buys2007; Parrish Reference Parrish2007; Bryant Reference Bryant2011).

Therefore, I argue that reliance upon foreign law is likely to be associated with an increased probability that lower courts negatively treat, rather than follow, Supreme Court precedent in constitutional cases. I examine reliance upon foreign law (as opposed to criticism of foreign law) because justices relying upon foreign sources argue the United States should act like countries similar to it, and adhere to notions of justice accepted by the world community without explaining why the approach suits the American context. In short, as Scalia states, they assume that American notions of justice are the same as those of other societies and fail to justify this conclusion. I expect that this assumption will offend some lower court judges just as it has troubled Supreme Court justices; both may conclude that the practice imposes foreign morality on the American public. Criticism is less likely to provoke such backlash, as it rejects rather than embraces foreign ideas. In addition, as demonstrated by the examples above, the most severe attacks are aimed at justices employing the tactic when interpreting constitutional provisions. Scalia wrote his visceral dissents, quoted above, in this context. Therefore, I focus my expectations on constitutional cases.

I detail my methodology for testing this expectation in the following section.