Comparing the judiciaries Flashcards
Similarities between the Supreme Courts
- 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
Differences between the Supreme Courts
- 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)
US SC impact on culture and society
Brown v Topeka ended segregation in America South
Roe v Wade legalized abortion
Obergefell v Hodges legalized same sex marriage
UK SC impact on culture and society
No such decisions made
US SC impact on executive and legislature
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
UK SC impact on executive and legislatures
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
US SC impact on federalism and devolution
All three of the cases extended the scope of federal law at the expense of states rights strengthening the power of the federal government
UK SC impact on federalism and devolution
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
Fundamental laws definition
the makeup of basic laws that shape constitution of a country
Retrospective data definition
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
Human Rights Act 1988
incorporated rights within European convention on Human Rights into UK law
bases of power
UK - given by parliament, Constitutional Reform Act
US - SC powers come from the constitution (exception of judicial review)
what has leaving the EU meant for the UK
- all EU legislation that applied to the UK was transferred to UK law
ECHR
- 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
when is the supreme court not the final court of appeal
- people still have the right of appeal to the ECHR
greater judicial power
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
key difference in how the courts protect human rights
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
Judicial independance
- 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
Judicial independence: examples
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
Judicial politicisation
- 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
politicised courts
- 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
politicised courts: examples
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
political or public pressure
- 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
political and public pressure
- 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
structural theory and courts
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
rational theory and courts
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
cultural theory and courts
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
