Comparison USA & UK Supreme Court

Why is the US Supreme Court so political BBC

Judicial Review in the UK

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 has a Supreme Court , it is a quite recent innovation and is also very different to the Supreme Court in the USA. The UK Supreme Court was created as a result of an Act of Parliament in October 2009. By this time, the US Supreme Court was already in its 220th year having been created by the USA Constitution in 1787. The UK Supreme Court replaced the Appellate Committee of the House of Lords as the nation’s highest court. The UK’s highest court was now structurally and politically separated itself from Parliament which was designed to reinforce the independence of its 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.

In the UK the Supreme Court has also been accused of Judicial activism most notably in the cases brought by Gina Miller over the right of Parliament to approve Article 50 and begin the process to exit the EU. This resulted in the infamous 'Enemies of the People' headline in the Daily mail. Recent cases based on the Human Rights Act which have delayed deportations or asserted the right of immigrants, as well as the increase in judicial review cases has led to a belief the the Supreme Court has adopted a view of itself as a guardian of rights and constitutional limits on the executive.

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.