Similarities + Differences Between The SCs Flashcards
What is a similarities regarding their history
-both untended provide independent judicial that was fully separate from other branches of gov
-both intended to uphold the rule of law
How was this seen with the US SC
-US SC included in the constitution as an integral part of the new republic
-sat for first time 1790
How was this seen with the UK SC
-UK SC very young institution
-prior to creation the HOL sat + were not physically independent from parl but est of SC part of programme to modernise judiciary + separate it from parl
How are they different regarding their history
-US SC developed as an arbiter of disagreement between states
-UK SC evolved over time + the rules have changed over time
How are they similar regarding the selection and appointment of justices
-both have detailed scrutiny of potential candidates including background checks
How is this similarity seen with the US SC
-nominees must be confirmed by senate in senate confirmation hearings which involved short-listing possible candidates + performing background checks by Whitehouse lawyers + FBI
-e.g. justice Anthony Kennedy 1988-2016 interviewed by FBI for over 10hrs + asked questions ranging from sexual history to treatment of animals
How is this similarity seen with the UK SC
-the creation of the JAC allows greater legtimacy transparency to appointment process
-enchanters separation of powers
-e.g. 2017 appointment of Lady Black - extensive experience as court of appeal judge
What is a difference between the UK SC and the US SC regarding the selection and appointment of justices
-for the US justices are political appointees who are nominated by the pres + confirmed by senate -making it highly politicised
-e.g. Amy Coney Barrett 2020 nominated by Trump Sept 2020 + confirmed by senate Oct 2020
How is this difference seen in the UK SC
-UK justices selected by independent selection committee before presented to Lord chancellor for approval
-Lord chancellor asks PM to recommend them to monarch for formal appointment
-Lord chancellor can reject or ask committee to reconsider but must confirm appointment
-e.g. Lady Rose in 2021
What are the similarities of the characteristics of judges
-both supremacies courts experience an underrepresentation of women and ethnics
-UK - no justices from ethnic minorities but 2 in US
-UK - had female pres Lady Hale 2017-20 + US has higher proportion of women by never had a female chief justice
What are the differences regarding the characteristics of judges
-UK - justices must have been either senior judge for 2yrs or solicitor in one of UKs highest courts or barrister for 15yrs e.g. Lady Hale extensive legal career incl 1973-94 a professor of law + family law specialist
-US - no official requirements to be SC justice but modern appointees always have signif legal or judicial experience e.g. Elena Kagan by Obama 2010 nominated judicial experience but a lawyer
What are the similarities regarding the tenure of justices
-both supreme courts enjoy security of tenure
-only be removed during their term for wrongdoing - by impeachment in US or via judicial complaints procedure in UK
-e.g. US = only instance in 1804 with impeachment of samuel chase
UK = Neuberger 2014 following controversial comments about reforms to judicial systems + was reported but outcome was non-violation
What is a difference regarding the tenure of justices
-UK justices may retire by 70 unless appointed before 1995 - criticised for forcing unnecessary retirement in their prime e.g. Lady Hale
-US justices have life tenure - can choose to retire but many continue until they die
What is an example of this regarding the US SC
-some justices anxious to retire e.g. liberal justice Stephen Breyer wanted to avoid vacating a seat while Trump pres as he would have appointed a cons replacement
What is a similarity between both SCs regarding the judicial approach
-the practice of judicial restraint in US
-similar in UK with following precedent + referring to parl
What are examples of this similarity
-US - justice Scalia using restraint on Columbia v Heller 2008 by basing opinion on historical + textual analysis supporting right bear arms - didn’t allow personal belief on gun control to influence his interpretation
-UK - R (Jackson) v Attorney General involving hunting act 2004 with court deferring to parl emph shouldn’t get involved in interpreting will of parl on matters related to relationship between parl + legislative process - upholding park sovereignty
What are differences regarding the judicial approach of both the UK SC and the US SC
-some US justices believe role is to interpret ‘living constitution’ in modern context - loose constructionist approach lead to judicial activism
-UK - justices have a more limited interpretative role
What is an example of this difference in the US regarding loose constructionists
-Ginsburg offered loose constructionist view regarding Obergefell v Hodges 2015 being a strong advocate for rights of women, minorities - LGBTQ+ arguing constituents should evolve to reflect societal changes
What is an example this difference in the UK
-2019 Johnson prorogue parl 5 weeks in lead up to Brexit deadline
-SC ruled decision as abuse of power but maintained narrow interpretation of its role stating it wasn’t engaging in wide-ranging review of executive power or determining legitimacy of prorogation power
