comparing judiciaries Flashcards
compare the roles and powers of UK vs US supreme court:
-US SC has a significant role in shaping law and policy through judicial review. It can declare laws as unconstitutional, which alters their meaning an application.
-UK SC can only rule on the application and the interpretation of law. it cannot strike down a law, it can only release a declaration of incompatibility or declare a government action ‘ultra vires’
compare the decisions of the UK vs US supreme court:
-decisions in the UK SC are usually unanimous e.g. in 2022 the SC unanimously voted that the scottish parliament does not have the power to legislate on a referendum for scottish independence
-decisions in the US SC are rarely unanimous due to clear ideological differences between the judges, with judges either taking a strict constructionist or a loose constructionist view e.g. in 2024 the SC voted 5-4 in favour of non-american citizen spouses of american citizens NOT being allowed to reside in America (supported by conservative justices)
compare the public profile of the UK vs US supreme court:
-US justices are relatively high profile due to the contentious issues they have to debate, and due to their own political/ideological leanings being scrutinised by the media e.g. Kavanaugh was scrutinised heavily during his appointment due to allegations of sexual assault against him
-UK SC members tend to have a lower profile which highlights that the court is less politicised than it is in the US
what’s the most important structural difference between the UK and US supreme court?
-the existence of a codified and entrenched constitution in the US vs the supremacy of parliament in the UK
-US supreme court has the power of judicial review which allows it to determine the meaning of the constitution and define whether executive actions or laws are constitutional
key difference: appointment process and tenure
US:
-nine members, all appointed by the president and confirmed by the senate
-members are appointed for life
UK:
-12 members, all appointed by the Judicial Appointments Commission (independent body)
-they have to retire aged 75
similarities in the appointment process and tenure:
-justices in the US and UK have security of tenure and fixed salaries
-this is all to ensure they are independent and impartial
-members of US SC can only be removed by impeachment in the house followed by a trial in the senate
-members of UK SC can only be removed by the monarch following an address by both houses of parliament
-therefore it is difficult to remove them in both countries - only 1 US justice has ever been impeached (samuel chase), has never happened in the UK
cultural similarity: concept of judicial independence
-It is considered vitally important in a democracy that individual judges as well as the judiciary as a whole are independent of all external pressures
-in both systems judges have immunity from prosecution for any acts they carry out in performance of their judicial function
-they also have immunity from lawsuits of defamation for what they say about parties or witnesses while hearing cases
-salaries of judges can’t be reduced
cultural difference: judicial neutrality
-in the UK this is upheld by an appointments process designed to minimise selection on the basis of politics
-however, the process for selecting and appointing the Supreme Court in the USA was designed to be in the hands of elected representatives and shared between the president and the Senate
-the designer of the constitution were concerned to maintain democratic control of the membership of the judiciary and above all avoid the process being solely in the hands of the president
-while this was aimed to prevent the president appointing cronies and friends it has not prevent the process becoming politicised
iIn particular in recent decades appointments to the Supreme Court in the USA have become dominated by political considerations e.g. Trump’s three justices (Kavanaugh, Coney-Barret, Gorsuch)
