Ryan J. Suto's Blog

15 July 2011

Judicial Diplomacy: The International Impact of the Supreme Court

This post on the public diplomacy of law was written for Jurist.org and can be found here.

The reasons for the American Revolution were submitted to a candid world in the Declaration of Independence. Later, these values were enshrined in the Constitution and the Bill of Rights. These distinctly American works are among the most influential legal documents of the modern era. Nonetheless, over the course of two centuries that once candid world has changed greatly. The influence of the US, both legally and otherwise, has waxed and, more recently, waned. However, if the US wishes to maintain its position as one of the world's leading legal systems, the nation's Supreme Court could stand not only to be more cognizant of the impact its decisions have in legal systems all over the world, it could stand to work to maximize that impact.
To enhance American legal influence, the Supreme Court must engage in what can be termed as public diplomacy. Public diplomacy can be defined as the image of a state or its people, as maintained by a government, organization or people. As such, the Court should endeavor to facilitate the understanding of its decisions, which are used to explain and test US legal values the world over. The world currently faces challenges that are inherently global in nature. For example, the legal questions associated with WikiLeaks, theArab Spring and Internet neutrality and censorship, are all matters that transcend borders. While the international nature of these issues proves political and legal isolationism faulty, hard power intervention also has grave shortcomings. As such, the Court's ability to indirectly apply legal force and influence presents itself as an attractive alternative, and it should be maximized accordingly.
The US has its greatest potential for influence in nations drafting new constitutions, forming new governments and otherwise attempting to progress and modernize. In these countries legal foundations are often still being set, making them more likely to look to foreign decisions for guidance and precedent. The fact that many foreign courts have cited US Supreme Court opinions demonstrates their influence beyond US borders. For example, quite recently India's Supreme Court found a constitutional right to counsel, citing many Supreme Court decisions as precedent. In its own precedential decision, the Supreme Court of India wrote, "[i]n our opinion, a criminal case should not be decided against the accused in the absence of counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell v. Alabama." The Court further citedGideon v. Wainwright and Brewer v. Williams in its holding.
Nonetheless, foreign court decisions that cite to the Supreme Court have generally declined. This likely reflects either a decreased foreign interest in the US legal system or the US's decreased interest in public legal diplomacy. Either way, it remains important that the US recover its jurisprudential influence, as this is a tool too valuable to lose.
First Amendment protections in general and freedom of speech in particular, provides an illustration of how the Court may utilize public diplomacy to expand the influence of the US legal tradition. In legal terms, the US has only arrived at its current approach to the First Amendment in the last 50 years, and the meaning of those 45 words is still evolving. However, in that time the US has been at the forefront of developing human rights such as freedom of expression and individual liberty. During the twentieth century these legal principles have been our greatest and most valuable export. For example, the Court expressed the extensive protection of speech and acts offered by the First Amendment in its 1989 decision, Texas v. Johnson. In Johnson, the Court held that the First Amendment protected the burning of the US flag as a means of protest. Justice William Brennan, writing for the majority, stated that "[t]he way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." The Court voiced to the world that disagreeable and offensive speech must be tolerated as freedom of expression and the protection of individual liberties are at the core of a free society.
The vital discussion of societal values was at the forefront of the Johnson decision, and it is this exact discussion that is absent from the current Court's decisions. For example, Snyder v. Phelps, a case decided this year, presented a perfect opportunity to engage in public diplomacy with regard to free speech. In this case, tort damages were sought against the Westboro Baptist Church for protesting at a soldier's funeral, spouting hate speech at the burial itself and on the Internet. While this case was viewed as controversial by the media and the general public, it garnered strong consensus on the Court. In an 8-1 decision, the majority held that the First Amendment protects those who stage peaceful protests near the funeral of a military service member from tort liability.
The majority opinion written by Chief Justice John Roberts is certainly on firm ground legally speaking. However, he and the other justices that joined his opinion missed an excellent opportunity to engage in public diplomacy. At a time where many post-conflict, developing and emerging societies are grappling with the concept and consequences of free speech, the Court would do well to offer non-doctrinal reasons for ideologically illustrative decisions. Understandably, the idea of allowing the actions of the Westboro Baptist Church to go unpunished in a society that values respect and order over individual liberties seems offensive and repugnant. However, rather than engaging in constructive dialogue or explaining why the US values free speech, the Court does little more than state that speech is powerful and that in spite of the pain it can cause, this nation has chosen a path that protects it. The Court insufficiently explains the value of free speech. While previous decisions of the Court have noted how important free speech is for the development and maintenance of a healthy society, political vibrancy and open and honest debate, the Court's current decisions avoid such commentary.
The Court is certainly the best institution to explain to scholars, governments, lawyers and lay people alike the enduring legal values of the US, why they have been chosen and how they contribute to the development of a stable and democratic society. A return to the mentality that one of America's most important exports is its legal traditions would certainly benefit the US and stands to benefit nations building and developing their own legal traditions, and our relations with them. Furthermore, it stands to increase the influence and higher the profile of the bench. The Court already engages in the exercise of dispensing justice and interpreting the Constitution, and to deliver its opinions with an eye toward their diplomatic value would take only minimal effort and has the potential for high returns. While the Court is indeed the best body to conduct legal diplomacy, it has been falling short in doing so in recent sessions.
We are at a critical moment in world history. People in the Middle East and North Africa are asserting discontent with their governments. Many nations in Africa, Asia, and Eurasia are grappling with new technologies, repressive regimes and economic despair. With the development of new countries, such as South Sudan, the formation of new governments, as is occurring in Egypt, and the development of new constitutions, as is occurring in Nepal, it is important that the US welcome and engage in legal diplomacy and informative two-way dialogue. As a nation with lasting and sustainable legal values and traditions, the Supreme Court should be at the forefront of public legal diplomacy. With each decision, the Supreme Court has the opportunity to better define, explain and defend key legal concepts. This is an opportunity that should not be wasted.