In my June 10, 2008 article (see below) on the Oregon Supreme Court I reported to you that Oregon's top court is rated at the bottom tier of all state supreme courts in the nation. It is now my sad duty to bring to your attention that The Supreme Court of the United States is no longer in the forefront of the world's courts. In a lengthy article entitled "U.S. Court Is Now Guiding Fewer Nations" in The New York Times dated September 18, 2008 there is a comprehensive analysis of how the country's top court has fallen into disrepair.
The slippery slope for the United States Supreme Court began in 2000 with the decision in Bush v. Gore, where, along party lines, the High Court gave the 2000 election to President Bush. But, first, let's go back to the Oregon Supreme Court. In a May, 2008 detailed study of the country's state high courts by the University of Chicago Law School, it was disclosed that Oregon's Supreme Court was rated 47th out of 50 states in productivity. A second rating of Oregon's top court is based on influence. This rating is determined by how often a state court's opinions are quoted and followed by other state top courts. Oregon again was at the bottom of the barrel. Oregon's Supreme Court was rated 48th out of 50 in how often their decisions are used and followed by other state supreme courts.
Now, according to The Times article, the United States Supreme Court is viewed as less influential than ever among the highest courts around the world, near and far.
Since the Second World War, judges around the world looked to the decisions of the United States Supreme Court for guidance, citing and often following American high court decisions. Now, "...American legal influence is waning", according to The New York Times article. In the last ten years, the Canadian Supreme Court's citation to the U.S. Supreme Court has fallen by half. The Australian Supreme Court follows the United States Supreme Court even less than ever. The story is similar around the globe. Why?
Human Rights -- Once, world courts followed the United States on human rights issues, but now they refer to the European Court of Human rights.
Politics -- Various countries are developing new, sophisticated constitutional courts which are often more liberal than the Rehnquist and Roberts courts.
Bad Reputation -- Experts have opined that the unpopularity of the Bush Administration means that foreign courts are less apt to justify opinions drawn from a nation "...unpopular with their domestic audience." Thomas Ginsburg, who teaches international law at the University of Chicago points out that, given our foreign policy over the last decade, it is to be expected that American influence would decline.
The Roberts Court -- As the Robert's Court wrestles with whether or not American High Court opinions should refer to foreign law, it is losing the central role it once had among courts in modern democracies. For example, Justice Michael Kirby of the Australian High Court states they now look to the Supreme Court of India or South Africa rather than the United States. Before her retirement, Justice Sandra Day O'Connor gave a speech where she stated: "When U.S. courts are seen to be cognizant of other judicial systems, our ability to act as a rule-of-law model for other nations will be enhanced".
Conclusion -- Yes, Virginia the sky is falling! Fat cat lawyers and others who are comfortably ensconced: It is now time to pay attention and get involved with your local legal or professional organization because things in the law clearly are not in good shape. This is a call to arms; shake that lethargy and become involved in your local community for the good of the cause. Let them know you are here to help get us out of being stuck in reverse. Sadly, that is where the legal profession has been for over twenty years. For me, I am not going to stop writing about it until we start going forward again. The Oregon State Bar has just selected a new Executive Director. This is a good place to start. Remember, one person can effect change and that would be you! Good show!