Comparing Judiciaries Flashcards
Comparing History
- Similar reasoning for creation but hundreds of years apart
- Intended to provide independent judiciary, fully separate from other branches
Comparing Creation
US - Included in Constitution, integral part of new republic
- Sat for first time 1790
UK - Previously Law Lords, part of Appellate Committee of HoL, not physically independent from parliament
- Established 2005 in Constitutional Reform Act, modernised judiciary to separate from legislature
Comparing Selection
Both - Detailed scrutiny of candidates
US - Justices political appointees, nominated by president and confirmed by Senate
UK - Justices selected by independent selection commission
- Presented to Lord Chancellor (gov minister) for approval
Politicisation of Appointment Process
US - Highly political
UK - Independent, far less media attention
- Position advertised and applied to same as any other job
- Independent selection committee recommends one name to Lord Chancellor, who asks PM to recommend them to King for formal appointment
- Lord Chancellor can reject name with good reason, or ask committee to reconsider once, but then must confirm
Comparing Experience of Justices
UK - Certain qualifications needed
- Senior Judge for at least 2 years, or
- “Qualifying Practitioner” for at least 15 years (soliciter or barrister at highest courts)
US - No official requirements
- Modern appointees all had significant legal or judicial experience
- Senate confirmation encourages high quality candidates
Comparing Characteristics of Justices
Both - Women and Ethnic Minorities underrepresented
US - 4 women but never a female chief justice
- 3 Justices ethnic minorities
- More women and ethnic minorities in lower courts, main recruitment pool
UK - Female President, Lady Hale, 2017-2020
- No ethnic minorities
Comparing Tenure of Justices
Both - Security of tenure, removes fear of repercussions from gov over rulings
- Can be removed from office for wrongdoing
UK - Removed via judicial complaints procedure
- Justices must retire by aged 70 - may force unnecessary retirement of high quality justices, e.g. Lady Hale
US - life tenure, choose when to retire, many continue well into eighties
- May be difficult to retire - lib justice Stephen Breyer feared retiring while Trump president & leave seat vacant
Comparing Judicial Approach
US - Some practice judicial restraint
- Some see constitution as “living document,” interpreted in modern context, leads to judicial activism
UK - Justice more limited interpretative role, similar to judicial restraint
Impact on culture and society
US - many important judgements on public policy
Brown v Topeka (1954) - ended racial segregation in South
Roe v Wade (1973) - legalised abortion
Obergefell v Hodges (2015) - legalised same sex marriage across USA
UK - no judgements with comparable impact on culture, society, or politics
Impact on Executive and Legislature
US - Constitution provides fundamental laws, interpreted by justices when ruling on gov actions or Acts of Congress
- Accused of legislating from the bench when controversial judgements
UK - Parliament sovereign, SC less powerful
- Most controversial rulings a defence of parliamentary sovereignty against gov action
UK Court upholding Parliamentary Sovereignty
2017 - Court found gov could not trigger Article 50 (mechanism to leave EU) without parliamentary approval
2019 - Court ruled unanimously that Bo Jo acted unlawfully by asking Queen to prorogue parliament weeks before UK due to exit EU
- Prevented parliament carrying out constitutional function of scrutinising and debating gov’s plans for Brexit
- Ruled parliament was no longer prorogued, allowed MPs to return
Impact on Federalism and Devolution
Both - Important in defining rights of constitutent assemblies
US - Roe, Brown & Obergefell extended scope of federal law at expense of sates’ rights, strengthended fed gov
UK - 2018 ruled Scottish Parliament had gone beyond devolved power by seeking to write own laws for certain areas of EU law to be returned to UK after Brexit
- Sovereignty of UK Parliament meant Scottish could not exceed powers granted in Scotland Act 1998
Source of US Supreme Courts power
- Article III established SCOTUS, gave it “judicial power of the United States”
- Powers come from constitution, does not need to take wishes of Congress into account
Judical Review precendet, established in Marbury v Madison (1803) - awarded power to itself by striking down an Act of Congress
Extent of Power - Final Courts of Appeal
Both - final courts of appeal
UK - two areas with further power
1 - While part of EU, EU law superseded UK (no longer applies)
2 - Individuals may bring human rights cases to UK courts, as ECHR written into HRA
- May seek justice in ECtHR in Strasbourg instead
Extent of Power - Judicial Review
Both - Judicial Review important check on power of government
- consider legality of actions in USA or rule actions ultra vires in UK
US - Acts of Congress subject to judicial review, can be struck down if unconstitutional
UK - Parliament sovereign so laws cannot be struck down
- More powerful over actions than Acts, more limited
UK Government getting around Supreme Court rulings
Can pass Retrospective Legislation - legalises something that occurs before it was passed
- may authorise actions rules by SC as ultra vires
- Gov generally complies with rulings, wants to be seen as law-abiding
- Forced to comply if lack sufficient support in parliament - Miller cases
- Gov can choose to ignore decisions
Comparing Protection of Rights
US - Can strike down law that infringes Bill of Rights
- rights entrenched in constitution, cannot be removed unless amended, but can be reinterpreted
UK - Can only identify law as incompatible with HRA 1998, invite parliament to redraft
- Parliament can ignore decision
- Parliament could modify or scrap HRA, withdraw from ECHR, or pass retrospective legislation to legalise breach
Comparing Constitutional Interpretation
US - Greater role in interpreting constitution
- Landmark cases effectively change meaning of Constitution - “interpretative amendments”
- Can only be reversed by formal amendment or subsequent ruling
UK - Cannot make sweeping interpretative changes, but can clarify meaning
- Both Miller cases clarified limitations of gov’s royal prerogative power
Comparing Judicial Independence
Both encourage independence - essential for rule of law
- free from external pressure, improper influence or interference
- decisions soley based on law, hold even power gov ministers to account
- Tenure ensures position protected from gov interference
- Structurally and physically separate - can rule against gov as they see fit
Examples of Judicial Independence
United States v Texas (2016) - Struck down Obama’s executive order giving millions of illegal immigrants an indefinite delay in deportation
R v Lord Chancellor (2016) - Ruled Lord Chancellor was acting ultra vires by imposing residence test for legal aid (state support with legal costs)
Judicial Politicisation - Politicised Courts
US - political leaning - presidents appoint conservative or liberal justices
- Rep president likely to be challenged less by court with Con majority, and vice versa
UK - Judges rule on narrower area of constitutional interpretation
- political views not a focus of public interest
US Supreme Court is politicised
Bush v Gorde (2000) - con maj. court ruled 5-4 against election recount in Florida, handed Bush presidency
- most controversial ruling in history
- argument that court lacked independence needed to rule on case
US Supreme Court is not politicised
- President has no influence over justices once appointed - have tenure
- Justices may rule against interests of president who appointed them - Gorsuch and Kavanaugh in Trump v Vance (2020)
- Two dissenting justices in Bush v Gore were Rep appointees, became part of liberal wing
- Court not always split neatly along ideological lines, frequent unanimous rulings
- 6-3 conservative majority court unanimously declined to hear Trump’s case challenging 2020 result, 3 justices his appointees
Trump reshaping the court
- Frustrated with “liberal” rulings, reshaped compostition of appeals courts
- Senate Reps blocked Obama’s nominations to judiciary in 2016, 100 seats waiting to be filled when Trump took office
- In first term appointed 54 appeals court justices, 2 fewer than Obama in 2 terms
- Picked young justices (avg age 50), ensures long-term legacy of con justices
