The "Globalized Judiciary" and the Rule of Law

Abstract

This paper argues, that, while not new in the strictest sense, the contemporary transnational turn in American law reflected in the U.S. Supreme Court's citation to foreign agreements, practices, and opinions in its recent affirmative action cases is distinctive in being part of a broad-ranging, highly politicized, reformist, intellectual movement. That movement, which is defined by its diverse commitments to a particular form of universal morality and foreign policy integration, in a turn that is novel, is currently striving to alter the domestic policies and constitutional understanding of the United States through the construction of a transnational, professionalized, global judiciary. The efforts to reform domestic policy through the construction of a quasi-autonomous, globalized judiciary, I contend, raises series rule of law problems within an American constitutional tradition premised on a theory of popular sovereignty. World events and popular constitutional resistance, however, may ultimately halt this trend.