Judges are likely to cite foreign decisions for the same reason they prefer quoting from a previous decision to stating a position anew: they are timid about speaking in their own voices lest they make legal justice seem too personal. They are constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they in fact are adopting on grounds other than deference to precedent. In-depth research for a judicial opinion is usually conducted after, rather than before, the judges have voted, albeit tentatively, on the outcome. Citing foreign decisions is an effort to further mystify the adjudicative process, as well as to disguise the political character of the decisions at the heart of the Supreme Court's constitutional jurisprudence. The more political a court, the harder it tries to appear nonpolitical.
(Richard A. Posner, How Judges Think [Cambridge and London: Harvard University Press, 2008], 350)
Note from KBJ: How does Judge Posner know that other judges are adopting positions "on grounds other than deference to precedent"? Can he read minds? Is he projecting his own disrespect for precedent onto others? Two can play this mind-reading game. I say that Judge Posner is uncomfortable making political decisions, so he wants his readers to think that appellate judging is inescapably political. If everyone is doing it, after all, then Judge Posner can't be singled out for criticism for doing it.
Note 2 from KBJ: Judge Posner makes it seem as though there is only one way to reach a judicial decision. First, one conducts research; second, based on that research, one makes up one's mind. He thinks that if the vote comes before the research, it shows that the decision was political. This is a flagrant non sequitur. There is no reason why a judge can't make a tentative decision, based on his or her knowledge of the law, then conduct research, and then, based on the research, decide to embrace the tentative decision. This is known as reflective equilibrium. Some philosophers think it's the epitome of rationality. Judge Posner makes it sound as though it's duplicity.
Keith Burgess-Jackson, J.D., Ph.D. 