Comparing the US and UK judiciaries

Question 1

The UK/US courts are similar?

Answer 1

1. (independence)
   Yes, USSC was designed to provide an independent judiciary.
   E.g. the separation of powers in the US, specifically outlined in article 3, the president cannot remove the a USSC justice and they have a life tenure

Yes, the UKSC is also independent
E.g. justices cannot be removed before retirement age of 70, justices do not have a high profile so media does not influence their decisions

2. (politicisation)
   No, the UKSC is less politicised due to the appointment process of justices
   E.g. PM cannot nominate UKSC justices, he can only accept or reject nominations from an independent Judicial Appointments Commission

No, USSC is more politicised by appointment process of justices
E.g. president nominates justices who are ideologically similar to himself, such as Obama appointing Elena Kagan and Sonia Sotomayor

3. (characteristics of justices)
   Yes, UKSC female justices are underrepresented
   E.g. women make up 25% of the UKSC, but 51% of British society.

Yes, USSC female justices are underrepresented
E.g. 3 of 9 US justices are women.

Question 2

Does the USSC has a greater impact than the UKSC on government and politics?

Answer 2

1. No, as UKSC can rule against laws passed by the legislature
   E.g. in R vs Secretary of State for the Home Department 2019 the UKSC ruled that he right to rent scheme is incompatible with article 14 of ECHR.

Yes, the USSC has a much bigger impact as it can strike down laws, whereas in the UK parliament remains sovereign so has the final say on whether legislation stands
E.g. Brown v Board of Education 1954, state laws ensuring segregation were struck down as unconstitutional

2. No, the UKSC has made controversial rulings declaring government’s actions as unlawful
   E.g. R v Secretary of State for Exiting the European Union, declared that the government could not trigger article 50 of the Lisbon Treaty

Yes the USSC has made controversial rulings and has acted as a third legislature
E.g. they legalised gay marriage in Obergefell vs Hodges 2015 where the 1996 Defence of Marriage Act was struck down as unconstitutional as the 14th amendment protected the right of everyone to marriage.

1. No, UKSC can check government with ultra vires rulings
   E.g. ultra vires R v Lord Chancellor 2016
   (rejected an attempt by the Lord Chancellor to limit the availability of legal aid on the basis of citizenship in the UK)

Yes, ultra vires can be overturned by retrospective legislation which is much harder in the US as it required 2/3 supermajority to alter USSC decision
E.g. Trump’s travel ban on 7 Muslim countries in 2017 was struck down as unconstitutional due to 1st amendment.

Question 3

What are the similarities and differences between the extent of powers of the UK and US SC?

Answer 3

1. Different, it is much harder for the USSC decisions to be overruled
   E.g. the USSC’s verdicts can only be overruled by a constitutional amendment requiring a 2/3 supermajority
   E.g. the UKSC’s verdicts can be overruled by a simple Act of Parliament
2. Similar, both are courts can use judicial review to rule against the actions of the government
   E.g. USSC can declare actions unconstitutional, such as declared Trump’s travel ban from 7 Muslim countries
   E.g. UKSC can declare actions as ultra vires, such as R v Lord Chancellor 2016
   (rejected an attempt by the Lord Chancellor to limit the availability of legal aid on the basis of citizenship in the UK)
3. Different, the USSC can strike down unconstitutional legislation, the UKSC can only declare legislation incompatible with the HRA 1998
   E.g. Obergefell v Hodges 2015
   E.g. R vs Secretary of State for the Home Department 2019 the UKSC ruled that he right to rent scheme is incompatible with article 14 of ECHR.

Question 4

What are the similarities and differences between the bases of powers of the UK and US SC?

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Answer 4

1. Different, UKSC’s powers were given to it by Parliament, whereas the USSC’s power of judicial review is not mentioned and derives from its own actions
   E.g. USSC independently overrode Marbury v Madison 1803 and has enjoyed the power of judicial review ever since.
   E.g. In 2005 Parliament passed the Constitutional Reform Act, creating the UKSC
2. Similar, both have the power to interpret the meaning of their constitutions and make judgements accordingly
   E.g. Obergefell v Hodges 2015
   E.g. ?
3. Different, UK does not have a codified constitution so the interpretive power of the UKSC is less significant as they can only interpret the HRA 1998, whereas the USSC can use the Bill of Rights
   E.g. R v Secretary of State for the Home Department 2019
   E.g. Brown v Board of Education 1954

Question 5

Are US and UK judiciaries independent?

Answer 5

1. Yes, both have made judgements against the ruling government
   E.g. Trump’s travel ban on 7 Muslim countries in 2017 was struck down as unconstitutional due to 1st amendment
   E.g. R v Secretary of State for Exiting the European Union, declared that the government could not trigger article 50 of the Lisbon Treaty
2. No, the UKSC is less politicised than the USSC due to the appointment process of justices
   E.g. PM can only accept or reject nominations from an independent Judicial Appointments Commission
   E.g. president nominates justices who are ideologically similar to himself, such as Obama appointing Elena Kagan and Sonia Sotomayor
3. No, both have received hostile public criticism of their judgements leading to fears that their independence may be affected
   E.g. Trump repeatedly attacked the USSC, tweeting furiously about ‘so called judges’ in 2017 and the ‘broken and unfair’ court system in 2018.
   E.g. in 2016 the UK’s Daily Mail ran a front-page headline labelling High Court judges as ‘enemies of the people’, in response to their ruling that the government could not trigger Article 50 to leave the EU.

Question 6

How can the structural theory (role of institutions) impact the US and UK judiciaries?

Answer 6

1. A codified US constitution results in a more powerful judiciary
   E.g. a constitutional amendment is needed to override a SC decision (e.g. Obergefell v Hodges), which requires a 2/3 supermajority
2. Parliamentary sovereignty in the UK results in a less powerful SC, as it cannot override parliament
   E.g. it can only interpret the HRA 1998 (R v Secretary of State for the Home Department 2019), which parliament can change with a simple majority
3. Similarities in tenure allow judicial independence
   E.g. USSC justices have a life tenure, UKSC justices must only retire at 70

Question 7

How can the rational theory (role of individuals) impact the US and UK judiciaries?

Answer 7

1. The role of Trump in undermining judicial independence
   E.g. Trump repeatedly attacked the USSC, tweeting furiously about the ‘broken and unfair’ court system in 2018.
2. Judicial activist justices are present on the US court
   E.g. Sotomayor and Kagan voted in favour in Obergefell v Hodges in 2015, essentially ‘legislating from the bench’
3. There are individual differences between the justices and their degree of politicisation.
   E.g. Clarence Thomas is a conservative, Sonia Sotomayor is a liberal

Question 8

How can the cultural theory impact the US and UK judiciaries?

Answer 8

1. Recent populist trends have undermined judicial independence in both countries
   E.g. Trump repeatedly attacked the USSC, tweeting furiously about the ‘broken and unfair’ court system in 2018.
   E.g. in 2016 the UK’s Daily Mail ran a front-page headline labelling High Court judges as ‘enemies of the people’, in response to their ruling that the government could not trigger Article 50 to leave the EU.

2. The USSC contributed to the
historic change in US cultural attitudes
towards race. 
E.g. Brown v Board of Education 1954 
(reflected the changing culture in the USA as segregation had originally been approved by the Court in Plessy v Ferguson 1896)

3. There are competing cultures of judicial restraint and judicial activism in the USSC
   E.g. Clarence Thomas voting no, Sonia Sotomayor voting yes in Obergefell v Hodges 2015

Question 9

Can the USSC better hold the government to account than the UKSC?

Answer 9

1. Yes, USSC has greater significance of judicial review to hold the executive accountable
   E.g. USSC can strike down actions of the executive, such as Trump’s travel ban

E.g. the UK can only use ultra vires rulings, such as R v Lord Chancellor 2016, the government can use its majority in Parliament to pass retrospective legislation, thus overriding ultra vires rulings.

2. No, as UKSC justices are nominated independently from the government, so therefore have less political bias
   E.g. the selection commission nominates and the lord chancellor can accept or reject the nomination, but cannot put forward their own candidate

No, USSC justices are appointed by the president and tend to reflect their political stance
E.g. Obama appointed Elena Kagan and Sonia Sotomayor, two liberals

3. Yes, the entrenched Bill of Rights allows the USSC to protect citizens’ rights by striking down unconstitutional legislation
   E.g. Obergefell v Hodges 2015

The UKSC can only declare legislation as incompatible with the HRA 1998
E.g. R v Secretary of State for the Home Department

Question 10

‘Citizens rights are better protected by the judiciary in the USA than the UK’

Answer 10

(USSC rights are entrenched, not those in UKSC)
1. Yes, US rights are entrenched in the constitution
E.g. Obergefell v Hodges 2015 struck down the 1996 Defence of Marriage Act due to 14th amendment, an entrenched right, so the USSC would have to make an amendment to reverse this decision, which required a difficult supermajority

Yes, UK rights are not entrenched
E.g. UKSC can only interpret the HRA 1998 (e.g. R v Secretary of State for the Home Department 2019 struck down right for rent scheme), which is not entrenched so retrospective legislation requiring only a simple majority can overturn UKSC decisions

(UKSC is more independent than USSC)
2. No, the UKSC is more independent
E.g. UKSC justices does not have a high profile so are rarely influenced by media or public pressure (excluding Daily Mail Article 50)

No, the USSC has had its independence threatened
E.g. USSC justices are high profile, Trump undermined their independence by tweeting about them in 2018, calling the courts ‘broken and unfair’

(UKSC is less politicised than USSC)
3. No, USSC is highly politicised
E.g. PM can only accept or reject UKSC justice nominations from an independent Judicial Appointments Commission
(may lead to the Court allowing the encroachment of the executive on people’s rights)

No, the UKSC is less politicised
E.g. USSC justices are directly appointed by the president and are almost always political, such as Obama appointing Sonia Sotomayor.