Comparing judiciaries Flashcards
Describe the historical context of the US Supreme Court (USSC) and the UK Supreme Court (UKSC).
The USSC was established as an integral part of the Constitution in 1790, intended to provide an independent judiciary. In contrast, the UKSC is a much younger institution, created after the UK Law Lords previously sat in the Appellate Committee of the House of Lords, which was not separate from Parliament.
Explain the selection process for justices in the US and UK.
In the US, justices are political appointees nominated by the president and confirmed by the Senate, making the process highly politicized. In the UK, justices are selected by an independent selection commission, which recommends candidates to the Lord Chancellor for approval, resulting in a less politicized process.
How do the characteristics of justices differ between the USSC and UKSC?
UK justices must have significant legal experience, such as being a senior judge for at least two years or a barrister for 15 years. In the US, there are no official requirements, but modern appointees typically have substantial legal or judicial experience.
Discuss the representation of women and minority ethnic groups in the USSC and UKSC.
The USSC has a higher proportion of women and three justices from minority ethnic groups, while the UKSC has no justices from minority ethnic groups and has had a female president, Lady Hale, from 2017 to 2020.
What is the tenure policy for justices in the US and UK?
Both US and UK justices enjoy security of tenure and can only be removed for wrongdoing. However, UK justices must retire by age 70, while US justices have life tenure and can choose to retire.
Explain the criticisms surrounding the retirement age of UK justices.
The mandatory retirement age of 70 for UK justices has been criticized for forcing unnecessary retirements, potentially removing justices from their roles while they are still capable, as exemplified by Lady Hale.
Describe the judicial approaches of justices in the US and UK.
Some US justices, mainly conservative, practice judicial restraint, similar to UK justices who follow precedent and defer to Parliament. However, some US justices advocate for a living constitution, which can lead to judicial activism, while UK justices have a more limited interpretive role.
How do the Supreme Courts of the US and UK impact government and politics?
Both the USSC and UKSC have made politically controversial rulings, including declaring government actions unlawful and ruling against laws passed by the legislature.
Define the role of the Lord Chancellor in the UK justice selection process.
The Lord Chancellor receives recommendations from the independent selection committee for justices and can approve or reject one name with good reason, or ask the committee to reconsider, but must confirm the appointment thereafter.
Do justices in the USSC and UKSC face similar challenges regarding diversity?
Yes, both courts face challenges with underrepresentation of women and minority ethnic groups, although the USSC is more diverse compared to the UKSC.
Describe the impact of the US Supreme Court (SCOTUS) on public policy.
SCOTUS has made significant rulings that have shaped public policy, including landmark cases such as Brown v Board of Education, Roe v Wade, and Obergefell v Hodges.
Explain the difference in the power of judicial review between SCOTUS and the UK Supreme Court (UKSC).
SCOTUS has the power of judicial review established in Marbury v Madison, allowing it to rule laws unconstitutional, while UKSC’s power is more limited as it cannot declare Acts of Parliament unconstitutional.
How does parliamentary sovereignty affect the UK Supreme Court’s (UKSC) rulings?
Parliamentary sovereignty limits UKSC’s remit, as it must defer to Parliament’s intentions when interpreting laws, and it cannot overturn Acts of Parliament.
Define the role of the US Constitution in the powers of SCOTUS.
The US Constitution, specifically Article III, established SCOTUS and granted it the judicial power to interpret laws and govern actions taken by Congress.
Do both the US and UK Supreme Courts serve as final courts of appeal?
Yes, both SCOTUS and UKSC serve as final courts of appeal, although UKSC’s role was affected by EU law while the UK was a member of the EU.
Explain the significance of the Miller cases in the context of UKSC’s rulings.
The Miller cases were politically controversial rulings where UKSC defended parliamentary sovereignty against government actions, highlighting the limits of executive power.
How has SCOTUS impacted federalism in the United States?
SCOTUS has extended the scope of federal power at the expense of states’ rights through landmark decisions like Brown v Board of Education, Roe v Wade, and Obergefell v Hodges.
Describe the relationship between the UKSC and the European Court of Human Rights (ECtHR).
The UK is a signatory to the ECHR, which allows individuals to seek justice for human rights breaches in the ECtHR, while the UKSC interprets the Human Rights Act 1998, which incorporates ECHR rights into UK law.
Explain the concept of judicial review in the context of the UK Supreme Court.
Judicial review in the UKSC is limited; it reviews legal precedents and applies them to new cases but cannot rule Acts of Parliament unconstitutional.
How does the lack of a codified constitution in the UK affect the UKSC’s operations?
Without a codified constitution, UKSC reviews legal precedents, constitutional conventions, and common law, interpreting laws based on written parts of the British Constitution like the Human Rights Act 1998.
Define the term ‘legislating from the bench’ as it relates to US justices.
‘Legislating from the bench’ refers to the criticism that US justices face when they are perceived to be making law through their rulings rather than simply interpreting existing laws.
Describe the impact of the UK Withdrawal from the EU on the UKSC’s rulings.
The UK Withdrawal from the EU led to a UKSC ruling that the Scottish Parliament exceeded its devolved powers by attempting to legislate on areas of EU law that were to return to the UK.
Describe the concept of judicial review in the context of the US and UK.
Judicial review is a check on government power where courts assess the legality of government actions. In the US, the Supreme Court (USSC) can declare actions unconstitutional, while in the UK, the Supreme Court (UKSC) can declare actions ultra vires. However, the UK government can sometimes override UKSC rulings.
Explain the difference in the power of judicial review between the USSC and UKSC.
The USSC has greater power of judicial review, as it can strike down Acts of Congress deemed unconstitutional. In contrast, the UKSC cannot strike down laws due to parliamentary sovereignty; it can only review government actions.
How does the protection of rights differ between the US and UK judicial systems?
In the US, the Supreme Court can strike down laws that infringe upon the Bill of Rights. In the UK, the Supreme Court can only declare laws incompatible with the Human Rights Act (HRA) and suggest redrafting, but Parliament can ignore these declarations.
Define the role of the Human Rights Act (HRA) in the UK judicial system.
The HRA allows the UKSC to identify laws that are incompatible with human rights, but it is not entrenched in the British Constitution, meaning Parliament can modify or repeal it.
Explain the concept of constitutional interpretation in the US compared to the UK.
The USSC plays a significant role in constitutional interpretation, often changing the meaning of the Constitution through landmark cases. The UKSC, however, cannot make sweeping changes but can clarify the meaning of constitutional provisions.
Describe the importance of judicial independence in the US and UK legal systems.
Judicial independence is crucial for the rule of law, ensuring judges are free from external pressures and can make decisions based solely on law. Both systems protect judges’ positions from government interference.
How does judicial politicisation manifest in the US compared to the UK?
In the US, judicial politicisation can occur when judges make controversial rulings influenced by political beliefs, especially with presidential appointments of justices. In the UK, judges focus more on constitutional interpretation, and their political views are less scrutinized.
Explain the implications of the USSC’s decision in Bush v Gore.
The USSC’s ruling in Bush v Gore, which effectively decided the outcome of the presidential election, led to criticism regarding the Court’s independence and its role in political matters.
Describe the structural independence of the judiciary in both the US and UK.
Both the US and UK judiciaries are structurally independent from other branches of government, allowing them to rule against government actions without fear of interference.
How does the UK government typically respond to UKSC decisions?
The UK government generally complies with UKSC decisions to uphold the rule of law, especially if it lacks sufficient parliamentary support; however, it can choose to ignore decisions if it has majority support.
Describe Trump’s approach to reshaping the US appeals courts during his presidency.
Trump appointed 54 appeals court judges, focusing on younger justices, in response to frustrations with ‘liberal’ judicial rulings and the backlog of 100 seats left unfilled by Senate Republicans blocking Obama’s nominations.
Explain the impact of political and public pressure on judicial decisions.
Judges may alter their decisions to avoid negative publicity or criticism from politicians, making it difficult to ascertain their true motives and independence.
How did social media influence judges according to the UK’s lord chief justice in 2017?
The UK’s lord chief justice stated that social media abuse created intolerable pressure on judges, affecting their ability to operate independently.
What criticisms did Trump express regarding the judicial system in 2017 and 2018?
Trump criticized ‘so-called judges’ and ‘slow and political courts’ in 2017, and condemned the court system as ‘broken and unfair’ in 2018.
Define the significance of the Citizens United ruling in the context of judicial criticism.
Obama criticized the Citizens United ruling, but Trump’s sustained and unprecedented criticism of the judiciary marked a notable shift in the relationship between the presidency and the courts.
How did the Brexit debate affect the perception of the judiciary in the UK?
The Brexit debate politicized the judiciary, exemplified by the Daily Mail’s ‘Enemies of the People’ headline after the High Court ruled against the government triggering Article 50 without parliamentary consent.
What was the public reaction to the Miller v the Prime Minister case in 2019?
Boris Johnson publicly criticized the judiciary following the Miller case, suggesting potential reforms to introduce political appointments similar to the US system.
Explain Lady Hale’s stance on the influence of public criticism on justices.
Lady Hale rejected the notion that justices are swayed by public criticism, asserting that they do not pay attention to such attacks.
What was the US Supreme Court’s response to Trump’s challenge regarding the 2020 election results?
The US Supreme Court unanimously declined to hear Trump’s challenge to the 2020 election results, ignoring his presidential criticism.
Describe the structural similarities and differences between the US and UK judiciaries.
Both systems allow for independent judgments due to security of tenure and separation of powers. However, the US judiciary is more powerful due to entrenched laws in the Constitution, while the UK judiciary is limited by parliamentary sovereignty.
How does the appointment process of justices differ between the US and the UK?
In the US, the appointment of justices is a political process leading to more politicized justices, whereas UK justices are independently appointed without clear political leanings.
What is the rational approach justices should take according to judicial theory?
Justices should analyze the merits of each case logically, aiming for unanimous judgments when the meaning of law is clear, although individual judgments may arise when the law is ambiguous.
Explain the challenges justices face in determining the meaning of law.
The meaning of law is often difficult to ascertain, leading justices to rely on personal analysis and individual judgment rather than reaching consensus.
Describe the impact of individual justices’ legal preferences on judicial decisions in the USA.
Individual justices in the USA make decisions based on their own legal preferences and philosophies, leading to divided judgments and strong opinions on both sides of controversial issues.
Explain the difference in judicial approaches between the USA and the UK.
In the USA, justices often exhibit a more activist approach influenced by liberal and conservative ideologies, while UK justices generally follow a more restrained judicial approach.
How do political pressures affect the judiciary in both the USA and the UK?
Judiciaries in both countries face censure from individuals seeking to advance their own interests, which politicizes the judiciary and places pressure on justices.
Define the term ‘judicial activism’ as it relates to the USA.
Judicial activism refers to the practice where justices are accused of making decisions based on personal or political considerations rather than strictly interpreting the law.
What historical document established the principle of unlawful imprisonment in the UK?
The Magna Carta, signed in 1215, established the principle that no one can be imprisoned unlawfully.
How has populism influenced perceptions of the judiciary in recent years?
Populism, exemplified by movements like Trumpism in the USA and the UK’s Brexit, has led to criticisms of the judiciary as being out of touch with the will of the people, diminishing public respect for judicial decisions.
Explain the significance of the US Supreme Court’s landmark judgments.
The US Supreme Court’s landmark judgments have defined citizens’ rights and sparked cultural battles, particularly on issues like abortion and same-sex marriage, highlighting the contentious nature of its rulings.
Describe the role of the Supreme Court in the UK compared to the US Supreme Court.
The UK Supreme Court has a lower public profile and tends to defer to Parliament, making its judgments less politically significant and less politicized than those of the US Supreme Court.
What was the intention behind the creation of an independent Supreme Court in the UK?
The creation of an independent Supreme Court aimed to make the judiciary more accessible to the public and clarify its role compared to the previous Law Lords.
How did recent political leaders in the USA and UK attempt to reform their judiciaries?
Political leaders like Trump and Boris Johnson have shown willingness to reform the judiciary to benefit their agendas, with Trump appointing more conservative judges and Johnson’s attorney general advocating for parliamentary control over judicial decisions.
