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Why is the US Supreme Court so political BBC
Is the UK Supreme Court too political?
Examine the ways in which the Supreme Courts in the USA and the UK differ in their approach to judicial decision making. (12 marks) Edexcel style
Although the UK now has a Supreme Court, it is a relatively recent development and differs significantly from the Supreme Court of the United States. The UK Supreme Court was established in October 2009 through an Act of Parliament, whereas the US Supreme Court had already been operating for more than 220 years, having been created by the US Constitution in 1787. The new UK court replaced the Appellate Committee of the House of Lords as the country’s highest judicial body. Its creation formally separated the judiciary from Parliament, a change designed to strengthen the independence and impartiality of UK judges.
The most important structural difference between the two courts is a result of the existence of a codified and entrenched constitution in the US and the Supremacy of Parliament in the UK. This difference was not explicitly apparent until the Supreme Court's decision in Marbury v Madison 1803 which established the Supreme Courts most significant power - judicial review. The ability to determine the meaning of the constitution and define whether executive actions or laws or constructional make the US Supreme Court significantly more power than its counterpart in the UK. This power was extended to state laws in Fletcher v Peck in 1810. It is this power that has given the Court its stature among the three branches of the federal government. This may not be what the founders of the constitution intended since Alexander Hamilton wrote in 1788 that the judiciary would be ‘the least dangerous branch’ because it has ‘no influence over either the sword or the purse’, referring to war and the budget.
Another significant difference is how members of the courts are appointed, their tenure and membership. There are nine members of the United States Supreme Court who are nominated by the president, confirmed by the Senate and serve for life ‘during good behaviour’. There is no mandatory retirement age. The UK Supreme Court has 12 members who are nominated by an independent body — the Judicial Appointments Commission. They must retire at age 70. The UK Supreme Court is also less diverse in terms of gender and ethnicity.
Judges in the UK and USA have security of tenure and high status and remuneration. (pay) Members of the US Supreme Court can be removed only by impeachment by the House followed by trial and conviction by the Senate. The only Supreme Court justice to be impeached was Samuel Chase, who was impeached by the House in March 1804 but acquitted by the Senate in March 1805. A judge of the UK Supreme Court could be removed by the monarch following an address by both houses of Parliament.
Like the US Supreme Court,the UK Supreme Court is the final domestic court of appeal. Additionally, it hears cases on devolution matters under the Scotland Act (1998), the Northern Ireland Act (1998) and the Government of Wales Act (2006). But it can not overrule the UK Parliament.
However, it is not powerless when it comes to decisions concerning laws passed by Parliament, as the courts can interpret the meaning of parliamentary law. It can interpret the meaning of parliamentary law, which gives it the scope to set precedents and exercise a political power which can be controversial even if its decisions do not have the same landmark status of those in the US since Parliament remains supreme. The US Supreme Court can declare actions to be unconstitutional, and the UK Supreme Court can declare actions to be ultra vires — that is, beyond the powers granted by Act of Parliament. This is what is meant by ‘judicial review’ in the UK and it is when the UK Supreme Court engages in this kind of judicial review that they are accused of 'judicial activism’. ie using the law for political ends.
In another way the UK Supreme Court is not supreme since it can be subject to a higher authority — namely the European Court of Human Rights in Strasbourg. It is the duty of the UK Supreme Court to interpret all existing legislation so that it is compatible with the European Convention on Human Rights (ECHR), so far as this is possible to do. Furthermore, in giving effect tomrights contained in the ECHR, the UK Supreme Court must take into account any related decision made by the Court in Strasbourg.
Culturally the concept of Judicial Independence applies in the USA and UK. It is considered vitally important in a democracy that individual judges as well as the judiciary as a whole are independent of all external pressures. In both systems judges have immunity from prosecution for any acts they carry out in performance of their judicial function. They also have immunity from lawsuits of defamation for what they say about parties or witnesses while hearing cases. The salaries of judges cannot be reduced.
Another key principle; judicial neutrality is less clear in both countries and very differently applied. In the UK Judicial neutrality is promoted by an appointment process which is designed to minimise selection on the basis of politics. However, the process for selecting and appointing the Supreme Court in the USA was designed to be in the hands of elected representatives and shared between the president and the Senate. The designer of the constitution were concerned to maintain democratic control of the membership of the judiciary and above all avoid the process being solely in the hands of the president. While this was aimed to prevent the president appointing cronies and friends it has not prevent the process becoming politicised. In particular in recent decades appointments to the Supreme Court in the USA have become dominated by political considerations.
It has also led to increasing accusation that the court has become a political institution particularly since the Supreme Court’s decision in Bush v Gore (2000) which resulted in the election of Republican George W. Bush. In his dissenting opinion, Justice John Paul Stevens stated:
'Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge guarding the rule of law.'
Conservative tend to see the pollicisation of the court as beginning earlier in the 1960s and 70s with cases such as Roe v Wade and Miranda v Arizona which they interpreted as examples of liberal judicial activism. For many African Americans the political nature of the court was apparent in the 19th Century in cases such as Dredd Scott and late in Plessey v Fergusson. There are also examples of the United States Supreme Court exhibiting judicial independence, for example, when in 1974, the Supreme Court in United States v Nixon decided unanimously against President Nixon in a case concerning Nixon’s claim of executive privilege in withholding the Watergate Tapes. Or more recently when in the opening weeks of the Trump presidency the lower federal courts declared the President’s executive order relating to limitations on entry into the United States from seven mainly Muslim countries to be unconstitutional. The President criticised the decision as ‘outrageous’, described the federal judge who made the initial decision as a ‘so-called judge’ Trump's appointment of three justices to the Supreme Court in Gorsuch, Kavanagh and Coney Barrett have also been seen as a clear attempt to create a conservative court as have his many appointments to federal courts generally.
Conservatives
A more persistent criticism has been the view that the judiciary is drawn from a narrow class elite and reflect the values and bias of their class. I
The rational approach to comparing the US and UK supreme courts and civil rights In both the USA and the UK, the justices are guided by their own personal judicial philosophies. These individual voting preferences will demonstrate a degree of politicisation.
• This is especially evident in the US Constitution. Justice Clarence Thomas’s rational interpretation of the Constitution has been described as conservative and originalist, and his personal interpretations regularly guide his judgements and views of the validity of particular arguments, such as in DC v Heller (2008) where he voted to uphold the Second Amendment. Conversely, the late Justice Ruth Bader Ginsburg was rationally persuaded by the arguments of the living constitution, which saw her interpret the Fourteenth Amendment’s ‘equal protection’ clause so as to recognise same-sex marriage in Obergefell v Hodges (2015). • While such politicisation is less prominent in the UK, Supreme Court justices have been accused of being too liberal and favouring individual rights above the security of the state. In both political systems, it is logical for individuals and interest groups arguing for their individual rights to challenge the legality of laws by targeting their Supreme Court. • The vagueness of the US Constitution and the different ways in which it can be interpreted mean that it makes rational sense to petition the Court, particularly if the philosophical leanings of an interest group align with the philosophical leanings of the judges. This was seen in the civil rights era when the NAACP successfully petitioned the judiciary for equal rights in the 1950s. • In the UK, in the Ashers Bakery case, it was rational for a Christian pressure group, the Christian Institute, to pursue its objectives of defending Christians’ rights of conscience through the courts.
The cultural comparison between the US and UK Supreme Courts and civil rights highlights their different histories and roles. The US Supreme Court, nearly as old as the nation, has been culturally recognized since Marbury v. Madison (1803) as having the legitimate power of judicial review, allowing it to informally update the Constitution. Through numerous landmark cases, it has played a leading role in advancing civil rights. By contrast, the UK Supreme Court, established in 2010, is less historically prominent in civil liberties, with key milestones often found in parliamentary Acts like the Race Relations Act (1965) and the Abortion Act (1967). While both courts enjoy cultural acceptance, the US Court’s long-standing tradition gives it greater reverence, though the UK Court is gaining prominence through high-profile cases such as R (Miller) v. The Prime Minister and Cherry v. Advocate General for Scotland (2019). In the US, a deep-rooted culture of rights protection fosters high expectations, as seen in devotion to the Second Amendment and DC v. Heller (2008). In the UK, expectations of rights stem from its historical legacy, dating back to the Magna Carta (1215), which first limited monarchical power.In both the USA and the UK, there are competing traditions of judicial restraint and judicial activism that shape how judges approach cases. In the USA, judicial restraint has long been part of the culture, seen in cases like Lyng v Northwest Indian Cemetery Protective Association (1988) and more recently Haaland v Brackeen (2023), which upheld the Indian Child Welfare Act (1978). The UK courts have also shown restraint at times, such as in R v Chancellor of the Duchy of Lancaster (2016), which supported the government’s right to limit voting rights for British citizens living abroad. On the other hand, judicial activism is also deeply rooted in the USA, with landmark cases like Brown v Board of Education (1954), Bush v Gore (2000), and Obergefell v Hodges (2015). In the UK, the Supreme Court has increasingly embraced activism, as in R v Chaytor and Others (2010), which denied MPs the use of parliamentary privilege to avoid prosecution, and Al Rawi v The Security Service (2011), which ruled against the use of secret evidence by intelligence agencies to hide torture allegations. Yet, restraint has also been evident, as in Begum v Home Secretary (2021), when the Supreme Court backed the Home Secretary’s decision to bar Shamima Begum from returning to the UK on national security grounds.
When comparing the US and UK Supreme Courts and civil rights from a structural perspective, there are both similarities and differences. The biggest difference lies in how justices are appointed: in the US, the process is highly political, involving both the president and the Senate, while in the UK it’s non-political and mostly free from the influence of Parliament or the prime minister. The powers of each court are shaped by their country’s constitutional framework. The US Constitution, being codified, gives the judiciary more power, with Supreme Court rulings acting almost like laws through judicial review. Its entrenched rights, especially in the Bill of Rights and later amendments, arguably give stronger protections for civil rights than in the UK, where rights rely on statute law and could be more easily changed. The UK’s lack of a codified constitution is a structural weakness, as Parliament could technically abolish the Supreme Court with a simple law. While the UK court can challenge government actions, these rulings can often be overridden by changing legislation. In contrast, the US Supreme Court’s role is firmly embedded in the Constitution, making it much harder for the other branches of government to bypass, largely due to the high bar for constitutional amendments.
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