Going Public with Transnational Law: The 2002-2003 Supreme Court Term

Abstract:     
Court watchers and scholars hail the Supreme Court's 2002 Tern as an international law watershed. With prominent international and foreign law citations in Lawrence v. Texas and Grutter v. Bollinger, two of the Term's highest profile decisions, international law purportedly arrived on "center stage" and, concomitantly, the appropriate role for international law in Supreme Court opinions quickly became a vogue topic of debate. However, this recent publicity obscures the role that foreign and international law has played in Supreme Court jurisprudence and perhaps unfairly depicts the Court as more isolationist than its record merits. The Court's international and foreign law citations were not, in and of themselves, revolutionary. It was the Court's decision to use such citations in the highest profile, potentially most controversial cases - with no dearth of domestic law or empirical evidence for guidance - that inevitably catapults the Court into a rather public, potentially polarizing, discussion of the proper role of transnational law in constitutional jurisprudence.

Number of Pages in PDF File: 11

Keywords: Supreme Court, international law, transnational law, constitutional law

Accepted Paper Series