Theoretical approaches to the judiciaries

Question 1

Structural

Structural similarities are crucial to judicial independence

Answer 1

• Security of tenure allows judticies to make independent judgements
• Seperation of powers gives the judiciaries independence from the other branches of fovt

Question 2

Structural

Structural differences between the US and UK lead to important differences between the two judiciaries

Answer 2

• Entrenched ‘fundamental laws’ in the US constitution have produced a more powerful judiciary than in the UK. The US court may use its interpretative powers for judicial activism is it wishes
• Parliamentary sovereignty limits the power of the UK SC, as it cannot override parliament. In contrast, the sovereignty of the US Constitution means that its SC can strike down laws passed by Congress
• Appointing US justices is a political process, which leads to more politicised and higher profile US justices. UK justices are independently appointed and do not have an obvious ‘conservative’ or ‘liberal’ leaning

Question 3

Rational

Rational approach to law

Answer 3

• Justicies should take a rational approach to law and make a logical judgement. If the meaning of the law is clear, then justices should reach unanimous judgements
• However, the meaning of the law is often difficult ot determine, so justices ,ake an individual judgement based on their personal analysis, resulting in divided judgements

Question 4

Rational

Justices making decisons based on legal preference

Answer 4

• individual justices make decisions based on their personal legal preferences and philosophy
• In the US, the presence of strongly liberal and conservative justices means that judgements are freqeuntly contraversial and justices may be accused of judical activism

Question 5

Rational

US and UK Supreme Courts’ decisions can lead to attempts by politicians to influence the judiciary

Answer 5

• Trump appointed unprecedented numbers of appeal court judges, choosing more conservative candidates than previous rep presidents
• Bojo appointed an attorney general Suella Braverman, who argued that parliament needed to take back control from the judiciary

Question 6

Cultural

Rule of law and judicial independence

Answer 6

• Both cultures prize the rule of law and judicial independence. This tradition dates back to Magna Carta (1215)
• The new US republic inherited these values from its existance as 13 colonies
• Both countires pride themselves on representing the best of the western liberal legal traditon

Question 7

Cultural

The rise of populism

Answer 7

• Trumpism in the US and the UK electorate’s decision to leave the EU and then give Johnson a majority general election in 2019
• Populists criticise the juduciary for supposedly thwaring the will of the people
• Daily Mail’s ‘Enemies of the people’ headline suggested a cultural battle between overly liberal judges and the people

Question 8

Cultural

US Supreme Court occupies a central role in US political culture that the UK Court does not

Answer 8

• US SC definition of citiziens’ rights via key landmark judgements has generated bitter vultural battles between liberals and religiousgroups over issues sch as aboution and same sex marriage
• The UK SC has a lower public profile and its deference to parliament means that its judgements are less significant