Supreme Court decisions resonate globally and act as a beacon of US politics power

The contemporary revival of globalist utopianism is distinctive from its 1940s precedessor in a crucial respect: it post-dates the U.S. Supreme Court's Brown v. Board of Education (1954) decision and the judge-led "rights revolution" it inaugurated. This revolution was closely followed, and proved highly influential around the world, inspiring many countries to accept the radical empowerment of their judiciaries at the expense of democratically elected legislatures. Whereas the traditional, post-war study of comparative constitutionalism was aimed at scholars and constitutional drafters, today comparative constitutionalists are speaking chiefly to lawyers and judges. Brown, the proliferation of litigation advocacy groups it inspired, and the rise of public law litigation, reversed the traditional progressive suspicion of judges as the (anti-democratic) handmaiden of economic elites and helped create the modern identification of judicial power with progress, civil liberties, and civil rights. The rise of Kantian legal theory, in turn, which envisaged the judge as the heroic tribune of universal morality, reinforced the moral authority - and, hence, political power - of the judge, and inflated his governing pretensions worldwide. For various reasons, foreign judges, post-1989, found the judicialized American politics increasingly attractive as a model. The U.S. Supreme Court, the European Court of Justice ("ECJ") duly noted, had helped to nationalize American politics by gradually negotiating away key aspects of the sovereignty of the American states. Nations newly emerging from dictatorships, and countries paralyzed by legislative and executive sclerosis knew that the Warren Court (1953-1969) had broken the southern stranglehold on Congress in the name of unimpeachable national goals. Cognizant of this American success story, they turned optimistically to courts to break their own policy deadlocks and advance the causes of civil liberties and human rights. Unlike their American counterparts, however, these judges were not able to defend their assertiveness by appealing to a centuries-old tradition anchoring judicial review in constitutional popular sovereignty. Instead — and crucially — they anchored their claims to political power in their participation, as fellow professionals, in a global project involving the identification and protection of human rights, the stewardship of the "new" international law, and the technical improvement of the quality of constitutional reasoning generally through transnational professional consultation. For judges in nations that were not so long ago living in isolation and tyranny, drawing a demonstrable connection to a worldwide project involving a movement toward "global governance" became a key source of judicial legitimacy. For them, put otherwise, the process of "judicial globalization" was itself the sine qua non of the construction of judicial legitimacy. A feedback loop soon developed. After decades of sustained battering at home, which included major intellectual assaults on [End Page 18] their use of the doctrines of substantive due process and substantive equal protection to justify their assertiveness, American judges - and a wide array of political activists and legal academics interested in the aggrandizement of American judicial power - began to see the opportunities in connecting themselves to this worldwide movement by tapping in to its freshened wellsprings of legitimacy. The currently intense interest of scholars in the doings of judges worldwide is a direct outgrowth of this process.