Cosmopolitan Judging and Habeas Corpus

Eric Posner has recently posted an essay analyzing Boumediene v. Bush, critical of what he calls "judicial cosmopolitanism" in the decision. The essay is typical of Posner--learned, nimble, and provocative. I do not find it convincing since he is, as he himself admits, working on the premise that Boumediene's major contribution to jurisprudence was to extend constitutional rights to noncitizens on foreign soil. The Court made no such pronouncement, and Posner acknowledges that the decision can be read much more narrowly.

If one separates his analysis of Boumediene to his critique of cosmopolitan judging, then we have the makings of a new debate in constitutional law. For better or worse, conservatives seem to line up in the "American exceptionalism" and positivist camps, adhering to originalism in constitutional construction. Liberals seem (also for better or worse) to be more interested in global human rights and the symbiotic relationship between American constituitonal law and global law. Posner's essay, while not particularly deep, is an excellent introduction to these ideas, and offers a conservative, thoughtful critique of cosmopolitan judging.

One effect of continually appointing strict originalists and positivists to the bench (people like Scalia and Alito) is that their palpable disdain for foreign law in an increasingly global era has lessened the influence of the Supreme Court internationally. The Court used to be the gold standard for constitutional law, but it is now in decline. Not that this signals an immediate need to admit foreign law into Supreme Court opinions--and certainly not as controling law--but we must be honest about the consequences of judicial parochialism as well as judicial cosmopolitanism.