The Platform

Photo illustration by John Lyman

For one reason or another, the U.S. Supreme Court has acted as a guide for other countries.

When the late U.S. Supreme Court Justice Antonin Scalia wrote for Washington University’s Law Quarterly on the complexities of Regents of the University of California v. Bakke, he called the divided court’s opinions “embarrassing.” To Scalia, the cacophony of conflicting viewpoints on race-based affirmative action rendered American constitutional law an enigma. Fast-forward to today and the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard has cemented Scalia’s skepticism: affirmative action now stands on unconstitutional grounds.

This seismic shift in the legal landscape is not an isolated event. In a world that looks increasingly to the U.S. Supreme Court (SCOTUS) for jurisprudential guidance, we must pause and ask: Is it wise to place such weight on the ideological whims of nine American justices?

Much has changed over the last year concerning SCOTUS and the public’s perception of its role as a progressive legal vanguard. The Court’s controversial judgments span from invalidating Roe v. Wade, thereby gutting abortion rights, to its newest stance against affirmative action. To clarify, this article is not a commentary on the judgments themselves but a call to reconsider our ideological dependencies on SCOTUS as we chart a course for the future.

The central arguments here are twofold. First, we must temper our tendency to import American legal doctrines indiscriminately into diverse jurisdictions. The onus is on cultivating a robust, home-grown legal framework. Second, countries should critically assess and adapt such influences to local contexts instead of naively adopting legal theories from abroad—as seen in India’s Data Protection Bill.

Scalia’s critique of race-based affirmative action was not a denouncement of diversity or inclusion per se. His essay, titled “The Disease as Cure: ‘In Order to Get beyond Racism, We Must First Take Account of Race,’” was a nuanced take that questioned the efficiency of such policies in achieving genuine equality. Recent academic works by Michael J. Sandel and Tarunabh Khaitan have built upon these questions, often citing SCOTUS jurisprudence. Yet, in a single judgment, SCOTUS has upended this scholarship, raising fundamental questions about the Court’s global influence.

Consider the varying interpretations of Article 14 of the Indian Constitution, which posits that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Are foreign precedents—especially those as unpredictable as those from SCOTUS—truly the most reliable sources for interpreting the foundational principles of other nations?

When SCOTUS adjudicated on Harvard’s admissions, it drew parallels between the concept of “separate but equal” and current affirmative action policies. If constitutional scholars globally continue to leapfrog to U.S. judgments for constitutional clarity, they might find themselves in a jurisprudential abyss.

Rather than questioning the role of the executive or judiciary in isolation, let’s focus on fostering an aware citizenry with a deep understanding of their constitutional and legal rights. This shouldn’t be a lesson in constitutional reverence but an effort to cultivate a collective conscience for justice and sustainability.

With SCOTUS taking a scythe to landmarks of constitutional law—like affirmative action and women’s reproductive rights—it’s clear that the Court is no longer a reliable compass for global jurisprudence. Nations should be cautious about looking abroad for legal inspiration and focus on nurturing their indigenous legal traditions.

Justice Scalia once warned against the pernicious outcomes of racial selection, concluding that “from racist principles flow racist results.” In an interconnected world, it’s high time we heed his caution and reconsider the pitfalls of aligning too closely with foreign legal philosophies.

Ravi Shankar Pandey is a regular contributor to leading legal scholarship spaces and is currently engaged in independent research and writing. Ravi has previously served in many editorial positions and has assisted leading academicians in various capacities.