7. comparing the US and UK judiciaries Flashcards
What are the similarities and differences between the UK and US supreme court? - History
Similarities:
- both SC were designed to provide an independent judiciary, fully separate from other branches of government
Differences:
- USSC first met in 1790
- UKSC created 2009
What are the similarities and differences between the UK and US supreme court? - selection and appointment of justices
Similarities:
- both systems involve detailed scrutiny of potential canidates
Differences:
- US justices are nominated by president and confirmed by senate (highly politicised)
- UK justices are chosen independently and presented to Lord Chancellor for approval (hardly any media attention)
What are the similarities and differences between the UK and US supreme court? - characteristics of justices
Similarities:
- Justices are experienced legal practitioners
- women and ethnic minorities are under represented
Differences:
- slightly higher proportion of women on the USSC 3/9 (3/12 UK)
- no ethnic minorities on UKSC while 2/9 in USSC
What are the similarities and differences between the UK and US supreme court? - tenure of justices
Similarities:
- both UK and US justices enjoy security of tenure
Differences:
- UK justices must retire by 75
- US justices have life tenure (unless removed)
What are the similarities and differences between the UK and US supreme court? - judicial approach
Similarities:
- some justices in USA practice judicial restrained, which is much closer to approach followed by UK justices
Differences:
- loose constructionism and the idea of a living constitution are judicial principles that do not apply in the UK
What are the similarities and differences between the UKSC and USSC impact on government and politics?
Similarities:
- both have made controversial rulings declaring the gov actions unlawful
- both have ruled against laws passed by the legislature
Differences:
- UKSC impact less as gov can pass retrospective legislation whereas the USSC can be overrule by constitutional amendment
- USSC can strike down while parliament is sovereign
- USSC has made huge impacts and decisions e.g. roe v wade, Obergefell v Hodges, brown v board
What are the similarities and differences between the UKSC and USSC extend of power?
Similarities:
- Both are final courts of appeal
- both can use judicial review to consider actions of the government
- both courts can rule against the actions of the gov (However, USSC is better as it is sovergein)
Differences:
- UK = par is sovereign so UKSC can’t strike down laws while USSC can
- par can ignore UKSC declaration if compatibility while the USSC can’t
What are the similarities and differences between the UKSC and the USSC bases of powers?
Similarities:
- both have the power to interpret the meaning of their constitutions and make judgments accordingly
Differences:
- due to uncodified constitution UKSC has less interpretative power
- USSC powers given by article 3 constitution while parliament gave UKSC powers
What is the evidence that suggests both UK and US judiciaries enjoy a high degree of judicial independence?
- position is protected from gov interference (tenure)
- both are structurally and physically independent from the other two branches of gov
- both judiciaries have made judgements against the ruling of gov:
+ United States v Texas - struck down Obamas order of giving illegal immigrants a delay on deportation
+ R v Lord Chancellor - ruled Lord Chancellor was acting ultra vires
What is the evidence that suggests that public criticism is causing politicisation of the UK and US judiciaries?
- both received hostile public criticism of judgement:
+ Trump & “so called judges” tweet 2017
+ Obama criticised USSC after citizens united v FEC 2010
+ Daily mail called them enemies of the people
What is the structural theory approach to the UK and US judiciaries?
- US - codified constitution results in a more powerful and potentially activists judiciary than the UK
- parliamentary sovereignty results in less powerful SC
- similarities in tenure allow judicial independence
What is the rational theory approach to the UK and US judiciaries?
- There are individual differences between justices their voting preferences and degree of politicisation
- judicial activists justices are present on the US court
- role of Trump in undermining judicial independence (2016 Trump suggested that District Judge Curiel could not be impartial when deciding the highly contested future of Trump University because of his “Mexican” heritage)
What is the cultural theory approach to the UK and US judiciaries?
- Contrast the reverence traditionally shown to the USSC by political culture with low public profile of new UKSC
- Creation of UKSC 2009 was an effort to make the constitution modern and easily accessible to the public
- bot courts culture prize judicial independence and rule of law
