Donald Trump’s Supreme Court pick Brett Kavanaugh was approved on Saturday 6th October, giving the US Supreme Court a conservative majority. A week-long FBI investigation following accusations of sexual assault by Dr. Christine Blasey Ford seemed to represent a major obstacle for Mr. Kavanaugh, but the day saw him confirmed for the position following a vote of 50 senators in favour, with 48 against.
It may take years to see the impact of Mr. Kavanaugh’s appointment, and of course depends on what cases come his way.
The importance of this nomination centers around the fact that the SCOTUS, like it’s Irish equivalent is the highest court in the country. Sometimes described as a “referee” in the US system of government, the Supreme Court has the final say in all cases involving the laws of Congress. It also has the power to rule, if necessary, that the actions of the President are against the provisions of the Constitution. Mr. Kavanaugh will now serve as a Supreme Court justice for life, an outcome that immediately sparked outrage among his opponents, with protesters rallying outside the Court while he was being sworn in. For Mr. Kavanaugh’s opponents, he enters the Supreme Court with a dark cloud hanging over his head.
His confirmation seals a 5-4 majority for Republicans, an outcome long-awaited by the Republican party. In the past few years, SCOTUS has legalized gay marriage, as well as upholding Donald Trump’s marriage ban. The Court can change its own rulings if it sees fit, and many anti-abortion activists are now hoping that this will be the case with Roe v Wade, and make way for a new conservative tradition. Many of Mr. Kavanaugh’s opponents feel that his impact on future rulings could be just as profound. Other issues at the forefront include gun control, while some have even expressed fears that Mr. Kavanaugh may even help President Trump avoid legal action while in office. Such concerns arise from Mr. Kavanaugh himself wrote in the Minnesota Law Review, expressing the opinion that “the President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens or civil litigation or criminal investigation and possible prosecution.” These views have led to the concern that the Supreme Court will refuse to allow a sitting president to be indicted or subpoenaed.
“The President’s job is difficult enough as is…”
The profound impact that Mr. Kavanaugh will inevitably have on the future rulings of SCOTUS is clear, but what is the potential impact, if any, that his confirmation will have on the decisions of the Courts in Europe and around the world? It is necessary to consider the concept of precedent and whether decisions made in American courts, most notably SCOTUS, have any bearing on the rulings of courts in other countries. The increasing globalization of the law requires lawyers to study foreign judicial practice. Courts may well consider international decisions when deciding on a domestic matter. Civil Law systems, such as those which exist in most European countries such as Spain, France, Austria and Germany, can indeed be used as examples for judges when forming opinions on particular cases. However it is not binding, and domestic courts can depart completely from these rulings if they see fit. The influence of SCOTUS decisions is strongest in jurisdictions whose constitutions have been modelled on that of the US. A notable example here is Argentina, where American precedent can hold a strong influence with regards to constitutional matters.
Similarly, in Common Law jurisdictions, such as that which exists in Ireland, the UK, Canada and New Zealand; decisions made by foreign courts are not binding. Rulings of SCOTUS are therefore of persuasive authority and may be followed at the option of the court, but in practice, the courts are much more likely to adopt the decisions of SCOTUS in other common law jurisdictions, and do so on a regular basis. Canadian courts may be regarded as an exception. Following the drafting of the Canadian Charter of Rights and Freedoms, Canadian courts are more likely to consider US decisions regarding the US Bill of Rights, and this case-law is now adopted much more frequently.
In Europe, SCOTUS has largely lost its influence especially considering the importance placed on the decisions of the European Court of Human Rights. As court systems around the world, including Ireland’s, continue to develop, countries tend to rely more on the decisions of their own national Supreme Courts.
No one judge steers the Supreme Court in any particular direction, and it may take years to see the impact of Mr. Kavanaugh’s appointment, and of course it depends on what cases come his way. However, regardless of whether one regards the appointment as a threat or a stepping stone, it seems that his influence largely remains in the US, with other countries around the world retraining their discretion with regards to the adoption of foreign decisions.