The Use of Foreign Sources in Supreme Court Decisions: Why Is It an Issue Today?

-- By WenweiLai - 25 Feb 2010

After 2002, suddenly justification is needed for the Court to cite foreign sources.

In the past, there was little scholastic discussion on this topic, and the Court seemed to have little problem with this question that has been resolved long ago.

Starting from the Atkins decision in 2002, foreign sources would draw sharp criticism from the conservatives once they appear in any decisions. It also became a hotly debated issue in law review articles.

The political context: the United States became more anti-international and leaned toward unilateralism.

Examples: the refusal to join the ICC and the illegal war in Iraq.

The justification for these acts provided by the government is strikingly similar to the arguments against the use of foreign sources.

Analysis of the arguments provided by the conservatives in the dissenting opinions and their supporters in law review articles: political arguments masked as legal arguments.

Driving force behind the political movement?

After September 11th, a need to reassert the popular sovereignty?

Or a more cynical view: just the means to extend American hegemony?

Which view is closer to what is (or was, hopefully) really going on?