Comparing the judiciaries

Question 1

Similarities between the Supreme Courts

Answer 1

• Independence from other two branches of government
• women and ethnic minorities are underrepresented
• both systems involve detailed scrutiny of potential candidates
• UK and US justices enjoy security of tenure (can only be removed by impeachment or judicial complaints procedure for wrongdoing)
• US conservative justices practice judicial restaurant similar to UK justices following precedents

Question 2

Differences between the Supreme Courts

Answer 2

• US Court started in 1789 UK Court started in 2005
• US justices life tenure UK justices 70 year tenure
• US justices appointed by president and confirmed by Senate, UK justices selected by JAC (US highly politicized, UK more independent with less media attention)
• US have no official requirements for justices, UK justices must serve as senior judge for 2 years or 15 years as a solicitor
• UK had no justices from minority ethnic groups, US has 2 (US Court more diverse and representative)

Question 3

US SC impact on culture and society

Answer 3

Brown v Topeka ended segregation in America South
Roe v Wade legalized abortion
Obergefell v Hodges legalized same sex marriage

Question 4

UK SC impact on culture and society

Answer 4

No such decisions made

Question 5

US SC impact on executive and legislature

Answer 5

Constitution is sovereign and provides set of ‘fundamental laws’ for its justices to interpret when ruling on government action
When they make controversial judgements their accused of legislating from the bench

Question 6

UK SC impact on executive and legislatures

Answer 6

Principle of parliamentary sovereignty gives SC narrower remit

R Miller v Secretary of State:
Court found that the government could not trigger Article 50 without parliaments approval

R Miller v PM:
Court rules unlawful for Boris Johnson to prorogue parliament

Question 7

US SC impact on federalism and devolution

Answer 7

All three of the cases extended the scope of federal law at the expense of states rights strengthening the power of the federal government

Question 8

UK SC impact on federalism and devolution

Answer 8

UK withdrawal from EU 2018 (Scotland bill):
the Court rules that the Scottish patient has gone beyond the powers devolved by seeking to write it’s own laws for certain areas of EU law that were to be returned to the UK after Brexit. Court rules that parliament sovereignty of the UK parliament meant that Scottish patient could not exceed powers granted in the Scotland Act 1998

Question 9

Fundamental laws definition

Answer 9

the makeup of basic laws that shape constitution of a country

Question 10

Retrospective data definition

Answer 10

a law to legalise something that occurred before it was passed. In the USA, the courts judgement can only be overruled by a constitutional amendment which is very difficult to achieve

Question 11

Human Rights Act 1988

Answer 11

incorporated rights within European convention on Human Rights into UK law

Question 12

bases of power

Answer 12

UK - given by parliament, Constitutional Reform Act
US - SC powers come from the constitution (exception of judicial review)

Question 13

what has leaving the EU meant for the UK

Answer 13

• all EU legislation that applied to the UK was transferred to UK law

Question 14

ECHR

Answer 14

• people can seek justice for breaches of their human rights at the ECtHR in Strasbourg
• allows individuals to bring human rights cases into UK courts

Question 15

when is the supreme court not the final court of appeal

Answer 15

• people still have the right of appeal to the ECHR

Question 16

greater judicial power

Answer 16

US power of judicial review is greater as UK parliament can pass retrospective legislation to authorise actions which the supreme court has ruled ultra vires. in USA, acts of Congress are subject to judicial review

Question 17

key difference in how the courts protect human rights

Answer 17

US supreme court can strike down laws that infringe the Bill of Rights, whereas the UK supreme court can only identify a law as being incompatible with the HRA and invite parliament to reconsider

Question 18

Judicial independance

Answer 18

• essential for rule of law
• both systems encourage the judges to be free from external pressure which allows them to make decisions solely based on law and hold members of government to account
• tenure ensures positions of judges are protected
• the judiciary are structurally independent from other branches

Question 19

Judicial independence: examples

Answer 19

United States v Texas:
struck down Obamas executive order giving millions of illegal immigrants an indefinite delay in deportation

R v Lord Chancellor:
Lord Chancellor was acting ultra vires by imposing a residence test for legal aid

Question 20

Judicial politicisation

Answer 20

• judges are drawn into politics which compromises neutrality
• this can happen when judges are make more controversial judgements that are enticed by politicians or the media, or if they are motivated by their own political beliefs as opposed to strict reading of the law

Question 21

politicised courts

Answer 21

• USA presidents can appoint either liberal or conservative justices
• UK justices political views are not a focus of public interest
• president has no influence over justices once they’ve been appointed because of tenure
• judges rule against political interests of politicians who have appointed them

Question 22

politicised courts: examples

Answer 22

Bush v Gore:
conservative majority court ruled 5-4 against election recount in Florida (decision that made Bush president), 2 of the judges were republican and became part of liberal wing of court

Trump v Vance:
Brett Kavanaugh ruled against Trump

Trump had appointed 54 appeals court judges, deliberately conservative and young to ensure long term legacy

Question 23

political or public pressure

Answer 23

• if judges make certain judgements to avoid negative publicity or criticism from key politicians, then they are not acting independently
• changing political culture has been driven partly by social media

Question 24

political and public pressure

Answer 24

• Trump used Twitter to criticise ‘so-called’ judges
• 2017 Lord Chief Justice said that ‘social media abuse puts justices under intolerable pressure’
• Daily Mail used front page to condemn High Court judges as ‘Enemies of The People’ after they ruled that government could not trigger Article 51 and leave the EU without parliament consent

Question 25

structural theory and courts

Answer 25

UK:
- parliamentary sovereignty limits courts
- JAC means judges aren’t liberal or conservative leaning

US:
- can use its powers for judicial activism
- sovereignty of constitution means SC can strike down laws passed by Congress

Question 26

rational theory and courts

Answer 26

UK:
- more restrained judicial approach
- Johnson appointed attorney general, Suella Braverman, who had stated parliament needed to take back power from the judiciary who was acting as a ‘political decision maker’

US:
- judges are frequently making controversial judgements and may be accused of judicial activism
- Trumps appointment of appeal court judges

Question 27

cultural theory and courts

Answer 27

UK:
- electorate decision to leave the EU showed populism (approach that strives to appeal to ordinary people that are oppressed by elite groups)
- Daily Mails ‘Enemies of The People’ made out a cultural battle between the judges and the people
- low public profile, judgements less significant

US:
- new US republic inherited rule of law and judicial independence principles from its previous existence as 13 British colonies
- populism on the rise because of Trumpism
- SC definition of citizens rights via key landmark judgements has generated other cultural battles between liberals and religious groups