United States of America: Confirming the Supreme Court’s Cautious Approach in the Use of Foreign Precedents

Although the Supreme Court made use of foreign cases, especially in the early stages of its activity, it was between 1990 and 2005 that this practice became the subject of intense controversy between judges, scholars, and politicians with respect to the essence of the Constitution and its interpretation. Since then, the debate has lost its intensity. Furthermore, more recently, there has been some reluctance to accept the relevance of foreign law, proving Justices' awareness of their relationships with other actors and the public. In particular, the Supreme Court has chosen not to rely on foreign law, even in cases where other courts' judgments were significantly prominent. The closure of the Supreme Court towards foreign legal materials also appears in its attitude towards statements from foreign governments about their own laws, to which the Court does not accord deference but "respectful consideration". Nonetheless, foreign precedents’ role in the decision of controversial cases should not be underestimated: pressures to adopt a comparative approach come from members of the civil society, both conservatives and liberals, in the form of amicus curiae briefs.