Comparing the us and uk supreme court

Question 1

What is the structural theory?

Answer 1

Comparison terms of structures/institutions e.g. executive, legislation and electoral system

Question 2

Structural UK?

Answer 2

Parliamentary sovereignty limits the uk supreme court as it cant overturn legislation
-Uk justices appointed indpendantly w/o liberal or conservative judgement
-Security of tenure, justices make more independent judgment

Question 3

Structural US?

Answer 3

Security of tenures
-Seperation of power giving judiciary independence
-Entrenched fundamental laws in consitution has led to more judicial power
-Judicial activism if needed
-Appointment process politicised

Question 4

What is cultural theory?

Answer 4

The role of shared ideas and culture
Compers in terms of the cultura; theory’s e.g. attitudes towards govt, race, gender, inequality, class, religion, monarchy and republican

Question 5

Cultural UK and USA?

Answer 5

-The rule of law + judicial independence
>Magna Carter 1215, establish no one can be imprisoned unlawfully
>US republic inherited these vales due to existence in 13 Britain colonies
-Both pride self on represent the best of liberal western legal tradition, in which a strong justiciary holds the govt to account and the rule of law applies
-Populasionation of Trumpism in US and Brexit in Uk, they believe they truly represent the people and believe they are the judiciary for thwarting the people, daily mail called the judiciary the enemy of the people for being overly liberal politicising them
-US supreme court has been a culture battle battle liberal and conservative/religious (abortion and same sex)
-Uk supreme court lower public profile and its different to parliament so less significant differences. Independent judiciary means it’s more accessible to the public, the role is different to law lords and high profile judgments like miller cases raising awareness for courts role, but still less politicised

Question 6

What is the rational theory?

Answer 6

Compares assumed behaviours of rational, self interested individuals and the role they play (voters/party leader)
This looks at competing interest of the groups
e.g. Republican- rich and the democrats poor
-The role of individuals acting to advance their interest or personal preference

Question 7

Rational- how do they believe justices should act?

Answer 7

Justices should use a rational approach to law to analyse the merits and make logical judgments to a case
-Is its clear unanimous decision but lots can be difficult so its divided

Question 8

Rational- US and Uk?

Answer 8

Leaders of both countries have aimed to reform judiciary at their own benefit
e.g. Trump appointing many conservative judged (more then any other president)
-UK Johnson appointing attorney general Suella Bravman who argued that parliament needed to take back control of the courts as it was making too many political decisions supplementing parliament

Question 9

Rational- USA?

Answer 9

Usa make judgments based on liberal and conservative opinions so judgments can be controversial
-Accuses justices accused of being activists

Question 10

Rational- USA?

Answer 10

Use restrained judicial approach

Question 11

Comparison of UK V US- age of courts?

Answer 11

US- old as US was only the federal court created by the constitution- reflecting esteem it held
Founding Fathers created separate institution that didn’t reflect a fused govt like the UK
-UK- supreme court is new due to 2009 parliment replacing the law courts, so structurally separate from parliament, this emphasis the independence of judges and increases transparency between parl and court

Question 12

Comparison of UK V US- number of justices/judiciary’s?

Answer 12

US-9
UK-12

Question 13

Comparison of UK V US- Appointments?

Answer 13

US- Appointed by president and approved by senate
UK- Independent appointed by select commision who recommended candidates to lord chancellors

Question 14

Comparison of UK V US- justices hearing cases?

Answer 14

US- All here cases
UK- Between 5-11 justices here the case

Question 15

Comparison of UK V US- time in court?

Answer 15

US- Life tenure
UK- Have to retire at 70 approved after 31 march 1995 and before 75

Question 16

Comparison of UK V US- ruling?

Answer 16

US- Chief justice
UK- President of supreme court

Question 17

Comparison of UK V US- how will they be removed?

Answer 17

US- impeachment (House) and the trial by the senate
UK- Justices removed by petitions o the monarch from both houses of parliament

Question 18

Comparison of UK V US- representation in parliament?

Answer 18

US- 4 women in SC and 3 ethnic minority
UK- Only 1 women on sc

Question 19

UK V US- powers?

Answer 19

-US, judicial review e.g. US v Windsor
UK- less than a decade old there powers include hearing appeals on arguable point of low of the greatest political importance for the whole of the uk, can’t look at criminal cases in scotland after devolution
But SC cant be overruled in the US due to parliamentary sovereignty

Question 20

Independence in the US?

Answer 20

-Life tenure and congress can’t reduce strategies e.g. Bush V Gore Dershowitz suggested that it was due to the justices wanted republican judge
-Can make political decisions: Dobbs ruling 6-3 democrat
-Independent so shouldn’t be criticised e.g desecration of the us flag is protected under free speech even though bush voted against it
And Obama SOU address criticised the court

Question 21

Interdependence in the US- case study’s?

Answer 21

-US V Nixon, ruled nixon couldn’t withhold information from the courts regarding the watergate tapes
-Clinton V Jones, ruled against clinton claiming he had immunity from prosecution from president
-Trump’s and muslim countries travel ban

Question 22

Independence in the UK?

Answer 22

-Independant appointment process
-Tenure, retiring at 70
-Separation of powers, courts now separated from parliament
-Should not be criticised under independence

Question 23

Independence in UK case study?

Answer 23

Theresa May triggering article 50
In 2016-17 they ruled that parliament shouldn’t trigger article 50, then ruled it had to be parliament not minority
Daily mail called them the enemies of the people who declared war on democracies

Question 24

Explain and analyse 3 ways in which the structural theory could be used to study the us and uk supreme court-
intro?

Answer 24

Write a definition of the structural theory
Comparison terms of structures/institutions e.g. executive, legislation and electoral system

Question 25

Explain and analyse 3 ways in which the structural theory could be used to study the us and uk supreme court- para 1 pea para?

Answer 25

P- The appointment process
E- US- nominated by president them confirmed by senate (Biden nominated Ketanji Jackson Brown) Brett Kavanaugh and Sonia Sotomayor
UK- independent process where senior judges nominate judges
A- US more politicised e.g. Brett Kavanaugh
US no media attention

Question 26

Explain and analyse 3 ways in which the structural theory could be used to study the us and uk supreme court- para 2 pea paragraph?

Answer 26

P- Power of judicial review (explain this)
E- US can strike down anything due to constitutional sovereignty (got power from precedent of Marbury v Madison)
UK can’t strike down acts of parliament due to parliamentary sovereignty but can look into actions of the executives/pm (Boris poroging a way after article 50)
A- US SC so much more powerful can change law e.g. Brown v Board of education, Obergefell, Windsor v US
Uk can only declare incompatibility and parliament can ignore this due to parliamentary sovereignty

Question 27

Explain and analyse 3 ways in which the structural theory could be used to study the us and uk supreme court- para 3 pea paragraph?

Answer 27

P- Similarity is judicial independence in both court
E- Both have tenure, both separate from govt e.g US v Nixon (handover tapes) or Clinton V US
In UK- forcing may to go to parliament to trigger article 50
A- Blurring of roles in UK mean less independence, Lord chancellor role moved to chief justice in 2005 but they are in the cabinet and are responsible and are responsible for the efficient functions and independence from the court. Attorney general and solicitor general are executives appointments but at least for court in major prosecution
US more independence as it safeguards