Comparative politics - Judiciaries

Question 1

The Judiciary

Answer 1

https://docs.google.com/document/d/1R0lWISc-5dZqkAJTr-djMmrXHkY6OBDXuDnA9W_j0sI/edit

Question 2

History of the courts

Answer 2

The rationale of the creation of both the courts was having a fully independent judiciary separate from the other two branches of government - the US judiciary is also a constitutional creation, whereas the UK court was more a product of modernisation and separation of political branches in the UK system

Question 3

Selection and appointment of justices

Answer 3

• Fundamental difference in the selection of candidates - in the US, justices are political appointees who are nominated by the president and confirmed by the Senate whereas in the UK justices are selected by an independent selection commission before being presented to the Lord Chancellor (a government minister)
• The US appointment process is highly politicised whereas the UK equivalent is independent and has a lot less media attention, with the process being like a normal job advert - an independent select committee then recommends one name to the lord Chancellor who asks the PM to recommend them to the Queen for formal appointment; a name can be rejected once with good reason or ask the committee to reconsider once, but then must confirm the appointment

Question 4

Characteristics of the judiciary

Answer 4

• UK - judges have to have been a senior judge for 2 years or a solicitor / barrister in one of the UK’s highest courts for 15 years
• US - no official requirements to be a Supreme Court justice but modern appointees always have significant legal or judicial experience
• Women and ethnic minorities are underrepresented in both courts - the USSC has a higher proportion of women but has had no female chief justice whereas the UKSC had one female president, Lady Hale, from 2017 to 2020 with there being no ethnic minority justices in the UK but two on the US
• The US court is therefore more representative and this is partly due to the higher proportion of women and ethnic minorities in lower US courts, a recruitment pool for justices

Question 5

Tenure of justices

Answer 5

• Both have security of tenure and can only be removed for wrongdoing, by impeachment in the US or via a judicial complaints procedure in the UK
• This allows impartial decisions to be made against the government without fear of repercussion
• However, the length of tenure is a main difference - UK justices must retire by 70 whereas US justices have life tenure or can choose to retire - retirement can be a difficult to do, such as octogenarian liberal justice Stephen Breyer being anxious to vacate a seat on the court during Trump’s presidency as he would have appointed a Conservative replacement
• The UK is often criticised for forcing the unnecessary retirement of justices in their prime, such as Lady Hale

Question 6

Judicial approach

Answer 6

• Some US justices, who are mainly conservative, practise judicial restraint, which is similar to the approach of UK justices, who tend to follow precedent and defer to parliament
• However, some US justices believe their role is to interpret the ‘living constitution’ in a modern context, and this loose constructionist approach leads to judicial activism, where judges make decisions to improve society, an interpretative role that is more limited in the UK

Question 7

The impact of the courts on government and politics

Answer 7

• Both courts have made controversial rulings, such as declaring the government’s actions unlawful and ruling against laws passed by the legislature
• The US Supreme Court has had a greater impact on government and politics because of its ability to interpret the Constitution and strike down laws passed by Congress or state legislatures
• As it is new, the UKSC is still in the process of defining its role, but its impact is unlikely to ever compare to the US court because parliament can overturn any ruling the UKSC makes

Question 8

The impact of the courts on the culture

Answer 8

The US court has made important judgements on public policy, such as Brown v Topeka in 1954 which led to the end of racial segregation in the American South, Roe v Wade in 1973 that legalised abortion and Obergefell v Hodges in 2015 that legalised same-sex marriage across the US - the UKSC has not made any comparable impact

Question 9

The impact of the courts on the other branches of government

Answer 9

• Constitution is sovereign in the US and provides a set of fundamental laws for US justices to interpret when ruling on a government action or Congressional law - when making politically controversial judgements of how the Constitution should be applied, they are often accused of ‘legislating from the bench’
• This is not the same as the UK, where the parliamentary sovereignty principle gives them a much narrower remit - two of the court’s most politically controversial judgements against government action in favour of parliamentary sovereignty (R Miller v Secretary of State for Exiting the EU in 2017 - could not trigger Article 50 without parliamentary approval, and a following ruling in 2019 R Miller v the Prime Minister condemned the prorogation of parliament by Johnson weeks before the exit from the EU

Question 10

Impact on devolution / federalism

Answer 10

• Both SC have played an important role in defining the rights of the constituent parts of the two nations, with the culture decisions extending the scope of federal laws at the expense of states rights, strengthening the power of the federal government
• In the UK Withdrawal from the EU (Scotland Bill) (2018) the UKSC ruled the Scottish parliament had gone beyond its devolved powers by seeking to write its own laws for areas of EU law being returned to the UK after Brexit, and the UKSC ruled the sovereignty of parliament meant that the Scottish Parliament could not exceed its 1998 Act powers

Question 11

Basis of powers

Answer 11

• Article III of the Constitution stated the SC would be the ‘judicial power of the United States, with the power of the judiciary coming directly from the Constitution, with the exception of judicial review of the legislature which was self-awarded in the striking down of an Act of Congress in Marbury v Madison (1803)
• The UKSC was instead created by an Act of Parliament (CRA 2005) and the SC’s powers were therefore given by parliament although the two institutions are separate and independent - their judicial review power is also a lot more limited than the USA as it cannot rule Acts of Parliament unconstitutional
• As the UK has no codified constitution, the UKSC also reviews legal precedents and decides how to apply it to new cases, considering written sources of the Constitution such as the HRA 1998 along with common law and conventions
  UK justices defer to parliament’s intentions when interpreting the law, whereas the US focuses on the wording of the Constitution giving the US court a stronger basis for power as it does need to accommodate Congress’ wishes

Question 12

Extent of powers - courts of appeal

Answer 12

• The US and UK Supreme Courts are both final courts of appeal for those seeking justice - however, the UKSC has not acted as the final court of appeal in two cases
• Whilst part of the EU and during the withdrawal, EU law superseded UK law with the European Court of Justice being the final court of appeal and when the UK left the EU, all EU legislation that applied to the UK was transferred into UK law - they therefore have become the final court of appeal again
• UK is signatory to the European Convention of Human Rights which is separate to the EU, signed in the 1950s to abide by articles protecting Human Rights, with people being able to seek breaches of their human rights at the European Court of Human Rights (ECtHR)in Strasbourg and the UK added the ECHR to the Constitution through the HRA 1998, making the ECtHR the final court of appeal in human rights issues

Question 13

Extent of powers - judicial review

Answer 13

• Important check where justices consider the legality of laws and actions and can consider them unconstitutional in the US or ultra vires in the UK - US power is stronger than the UK as a majority UK parliament can override the ruling with an Act of Parl.
• Parliament can pass retrospective legislation to authorise ultra vires actions and UK governments generally comply with Court decisions in respect of the rule of law - if the government lacks sufficient parliamentary support, they are also forced to comply but they can also simply ignore the decision
• In the USA, Acts of Congress are also subject to judicial review, and can be struck down if the Supreme Court finds them to be unconstitutional; in the UK, parliament is sovereign so its laws cannot be struck down - judicial review only applies to government actions, and so is more limited as a power

Question 14

Extent of powers - protection of rights

Answer 14

• US Supreme Court can strike down laws that infringe the Bill of Rights, whereas the UKSC can only identify a law as being incompatible with the HRA in 1998 and invite parliament to consider redrafting legislation - parliament can also ignore this ‘declaration of incompatibility if they wanted to
• Unlike the Bill of Rights in the US, the HRA is not entrenched in the British Constitution, so parliament could pass a new law to modify it or scrap it and they are also able to withdraw the UK from the ECHR if they wanted to - this makes it possible for parliament to infringe on human rights or to legalise any action against human rights with retrospective legislation
• In the USA, rights are entrenched in the Constitution and so cannot be removed except by a constitutional amendment although these can just be reinterpreted by the court

Question 15

Extent of powers - Constitutional intepretation

Answer 15

• The US Supreme Court has a much greater role in interpreting the Constitution than the UK Court, with landmark cases effectively changing the meaning of the Constitution by acting as ‘interpretive amendments’ that can only be reversed by a constitutional amendment or a subsequent decision by the Court
• The UK Supreme Court cannot make sweeping interpretative changes to the Constitution, although it can clarify its meaning as it did both Miller cases with regard to the limitations of the government’s royal prerogative power

Question 16

Judicial independence

Answer 16

• In both countries, tenure ensures the position of justices is protected from government interference and the judiciaries are also structurally and physically independent from the other branches and this allows them to rule as they see fit e.g. United States v Texas (2016) - struck down Obama’s executive order to delay deportation
• Independence is essential for rule of law - judges are therefore free from any external pressure, improper influence or interference allowing them to make decisions solely on the law and hold powerful government members to account

Question 17

Judicial politicisation - politicised courts

Answer 17

• Can compromise their neutrality and can happen when controversial decisions are made that are then criticised by the media and other politicians, or they are motivated by their own beliefs rather than the legality of a situation
• Judicial politicisation threatens judicial independence in the following ways

Politicised courts - ability of presidents to nominate either a ‘liberal’ or ‘conservative’ justice means the SC usually has political leaning, such as a conservative court being less likely to challenge a Republican President and vice versa with a liberal court; this does not happen in the UK due to the narrower constitutional scope and a lack of party alignment in the nomination process
- Bush v Gore (2000) - conservative-majority court ruled against an election recount in Florida, leading to Bush becoming President and criticism the court had not acted independently
- However, other evidence suggests they can act independently - the President has no influence after appointment, justices have ruled against the political interests of the politicians who appointed them e.g. Kavanaugh in Trump v Vance (2020) and not supporting Trump’s election fraud accusation, two of the dissenting judges in Bush v Gore were Republican appointed and the court does not always split neatly along ideological lines (Trump election case refused)
- Trump’s frustration with the ‘liberal’ judicial rulings led him to reshape the US appeals courts while he was President
- Senate Republicans also blocked Obama’s nominations to the judiciary at the end of his presidency and this allowed Trump to pick young conservative judges to ensure a long legacy of conservative weighting in the court

Question 18

Judicial politicisation - Political and public pressure

Answer 18

• If judgements are made based on negative publicity or criticism from key politicians, they are not acting independently
• Changing political culture driven by social media has created more criticism of the courts; the UK’s lord chief justice said social media ‘abuse’ put judges under pressure and Trump often used Twitter to criticise ‘so-called judges’ and ‘slow and political courts’ in 2017
  Obama also criticised the Supreme Court’s Citizens United v Federal Election Commission (2010)
• Political criticism of the UK judiciary has also changed - initially, it was mainly criticised for its HRA interpretation; however, Theresa May criticised judges for ‘ignoring’ deportation law by making it more difficult to deport criminal foreign nationals
• The Brexit process led to even more politicisation, with media calling the court the ‘enemy of the people’ after they ruled the government could not trigger Article 50 without parliament and they were also criticised by Johnson after the R Miller v the Prime Minister (prorogation ruling) which led to threats to reform the judiciary
• However, both courts have shown their ability to reject public pressure such as resisting Trump’s election challenge

Question 19

Structural approach to the judiciaries - role of political institutions

Answer 19

Similarities:
- Security of tenure allows justices to remain independent
- Separation of powers gives the judiciary’s independence from the other two branches of government

Differences:
- Entrenched ‘fundamental laws’ in the US Constitution have produced a more powerful judiciary than the UK, and the US court can be more politically activist
- Parliamentary sovereignty limits the power of the UKSC as it cannot override parliament - in contrast, the constitutional sovereignty of the US Constitution means that its Supreme Court can strike down laws passed by Congress
- Appointing US justices is a political process, which leads to more politicised and higher-profile US justices - UK justices are independently appointed and do not have the same ‘conservative’ and ‘liberal’ leaning

Question 20

Rational approach to comparing the judiciaries - role of individuals acting to advance their interests or personal preference:

Answer 20

• Justices should be rational to the law, analysing the merits of each case and making logical judgements - if the meaning of the law is clear, judgement should be unanimous, so when the law is difficult to determine justices use personal judgement resulting in divide with strong supporters and dissenters in the court
• Individual justices make decisions based on their own legal preferences and philosophy and in the USA the presence of strongly liberal and conservative justices makes most decisions controversial and causes accusations of judicial activism - UK judges are usually more restrained
• The judiciaries are often censored by individuals aiming to advance their own interests, politicising the judiciary and putting justices under pressure as leaders of both countries have threatened judicial reform to benefit them - Trump appointed over 100 appeal court judges, choosing more Conservative candidates than other Republican presidents
  Johnson appointed Suella Braverman as attorney general, who pushed the narrative of the government taking back control from the judiciary who she felt was acting as a political decision maker

Question 21

Cultural approach to comparing the judiciaries - the role of shared ideas and culture

Answer 21

• Both cultures emphasise judicial independence dating back to the traditions of the Magna Carta in 1215, which established that no one could be imprisoned unlawfully, a principle inherited by the US from the 13 British colonies - both countries emphasise a Western liberal legal tradition where a strong judiciary holds the government accountable and applies rule of law
• The rise of populism with Trumpism in the US and the decision to leave the EU and give Johnson a majority in 2019 led to a populist electorate who have criticised the judiciary for ‘thwarting’ the will of the people and the media’s suggestion of a cultural battle between liberal judges and the people politicised the judiciary and diminished public support for the judiciary (Daily Mail ‘Enemies of the People’ headline)
• The US Supreme Court’s definition of citizens’ right via key landmark decisions has created cultural battle between liberals and religious groups over issues such as abortion and same-sex marriage
• The UK Supreme Court in contrast has a lower public profile and its defence to parliament means that its judgements are less significant and the creation of an independent Supreme Court was intended to make the judiciary more accessible to the public and it has a clearer role than the Law Lords
• High profile cases such as the Miller cases have raised public awareness of the Court’s roles but it remains less politically significant and less politicised than their US counterpart