Judicial exchanges don’t happen and aren’t the lynchpin

The significance of this inter-court dialogue and the use of foreign law and practice in domestic courts is a hotly contested issue at a time when the reaffirmation of national sovereignty through the rise of extremist values and political and economic introspection are in the ascendency. Famously, just over a decade ago, Justices Stephen Breyer and Antonin Scalia debated the use of foreign law by the U.S. Supreme Court, with Scalia's more insular approach seemingly winning the day despite the opposing preferences of other Justices, such as Breyer, Ginsburg, and Kennedy. Since thenJustice Breyer has restated the case for the judge to also be a "diplomat" and to learn from foreign legal ideas, particularly the European constitutional concept of proportionality when adjudicating on the First Amendment. In a similar way, the members of the Court of Justice of the European Union have also struggled with the use of foreign legal norms given the more precarious nature of its jurisdiction vis-A-vis twenty-eight member states. In fact, no direct citation to the U.S. Supreme Court appears in the judgments of the Court of Justice of the European Union even though some opinions of its Advocates General occasionally cite to U.S. jurisprudence. This is in sharp contrast from the other regional European court, the European Court of Human Rights based in Strasbourg, which openly cites the U.S. Supreme Court in its decisions.

The lack of this overt kind of influence of the U.S. Supreme Court on the Court of Justice of the European Union and vice-versa does not necessarily mean that they do not employ similar ideas and modes of reasoning. Some scholars have attempted to trace some of these more invisible or cultural cross-influences through the lenses of transnational dialogue among courts, migration of constitutional ideas, and judicial comparativism as judicial diplomacy. Yet the current literature on comparative constitutional law remains silent on the deep cultural and ideological connections between the Court of Justice of the European Union and the U.S. Supreme Court. Our questioning during the following conversation sought to evidence the concrete benefits and advantages of this judicial dialogue and to impart to the audience the value and normative significance of the courts' relationship at a time when judicial independence, and potentially the rule of law itself, are being subverted. We hope that judicial exchanges, like this one between Associate Justice Stephen Breyer and President Koen Lenaerts, can stem the tide of isolationism that has befallen the Western world.