Comparing the us and uk Judiciary Flashcards
Structural comparison of the judicial restraint
The US codified constitution results in a more powerful, activist and political judiciary than in the UK where judges are expected to show more restraint.
In the US in the past the Supreme Court has been seen as a quasi-legislative body, as it has basically made rights like abortion rights.
In the UK this does not happen as judges so not rule over parliament, with the government being picked up on very rarely. The last time was when Johnson tried to prorogue parliament.
Structural comparison with parliamentary sovereignty.
Parliamentary sovereignty in the UK means that the judiciary cannot override Parliament in the same way as the US Supreme Court can strike down congressional and presidential legislation.
Parliamentary sovereignty means that parliament is the highest form of power in the UK. This means the court has less power as if something is ruled unconstitutional a simple act can make it legal.
In the US the supreme court has the power of judicial review and therefore can strike down presidents laws if they think that they are unconstitutional. Not only the supreme court can do this with a county court stopping trump’s muslim travel ban.
Structural comparison of judicial independence
In both the US and UK security of tenure, high pay and constitutional expectations ensure judicial independence
In the UK judicial independence is helped by-security of tenure, fixing wages till the end of the judicial session.
In the US Judicial independence is not very well protected, with judges getting brought in due to their views being the same as the president’s. This is how kavanaugh, Barrett and Gorsuch got in.
Rational comparison of liberal and conservative judges.
In the US Supreme Court there are differences between justices who are often labelled liberal or conservative. In the UK, judges are expected to be neutral and are not allowed to belong to political parties and pressure groups and should not express political opinions or preferences.
This is due to the US judicial system being very politicised with appointments and high cases being broadcasted on television a lot. This leads to judges being named liberal or conservative as they were also placed their to be the presidents puppet.
In the UK it is a lot more neutral due to the anonymity of the judges being kept. They are also appointed by a separate committee to make sure appointments aren’t because of political reasons.
Rational comparison of the appointments of judges
In the US, Presidents appoint judges who reflect their political ideology hoping that they will act accordingly. The Senate also often ratifies appointments along political lines. This is different in the UK where the appointment process is neutral and done through the independent JAC.
President trump elected Gorsuch, Barrett and kavanaugh. This is as they all share his political views and will vote in his stane in the future. This worked as Roe V Wade was overturned.
In the UK it used to be the case that the chancellor appointed the justices but then after the constitutional reform act it was transferred to the JAC. This is an independent body that was made
Rational comparison of the appointments of judges
In the US, Presidents appoint judges who reflect their political ideology hoping that they will act accordingly. The Senate also often ratifies appointments along political lines. This is different in the UK where the appointment process is neutral and done through the independent JAC.
President trump elected Gorsuch, Barrett and kavanaugh. This is as they all share his political views and will vote in his stane in the future. This worked as Roe V Wade was overturned.
In the UK it used to be the case that the chancellor appointed the justices but then after the constitutional reform act it was transferred to the JAC. This is an independent body that was made to appoint judges into the court. This is needed as UK judges follow judicial independence.
Rational comparison of the executive trying to undermine the courts
In recent years, President Trump has often tried to undermine the US judiciary through tweets and discrediting the Muller inquiry. Theresa May has also tried to undermine the UK courts especially when she was Home
Secretary over their decisions on immigration.
Cultural comparison of how long the courts have been around for
In the US, the Supreme Court is well established being over 200 years old and
is regarded with reverence. It has a very high profile. In the UK, the Supreme Court is new and has a very low profile. The US court has more extensive powers to declare things unconstitutional whereas the UK court does not. The UK court is relatively new and does not have the same public profile as that in
the US
As the US court is older it has gathered more of a mandate to get things right and to rule over bigger things due to it having successes in the past, like obergefell V hodges and Brown V Topeka
In the UK as the court is relatively new, it does not take on massive public cases like in the UK. With the prorogation of parliament being the biggest case.
Cultural comparison of rule of law and judicial independence
Both courts exist in cultures that prize the concept of the rule of law and judicial independence.
Rule of law is equal in both countries with the uk being partygate and the US having the supreme court to keep them in check.
Judicial independence is not kept very well in the US with judges being appointed for a political view. Whereas in the UK the judges are all independent.
Cultural comparison of the time the courts were made
The UK supreme Court was created to modernise the UK constitution and
promote the separation of powers. This has been the case in the US since inception in 1788.
The uk supreme court was made in thee constitutional reform act 2005 to make the judicial system better. Whereas in the US it was made to settle disputes between states in 1788.
