Examine the ways in which the Supreme Courts in the USA and the UK differ in their approach to judicial decision making. (12 marks)

Decisions made by justices in the US can be swayed by the president who nominated them, whereas in the UK, judges are not nominated by the prime minister but instead appointed by the independent appointments commission, which means that decisions made by justices in the UK are likely to be less politically motivated than justices in the USA. In 2019, in Karnoski v Trump, five Supreme Court justices voted in favour of allowing President Trump’s restrictions on transgender individuals serving in the military to continue. All five justices in the Karnoski case that supported Trump’s restrictions had been nominated by Republican presidents and two of these, Gorsuch and Kavanaugh, had been nominated by Trump himself. However, justices in both the UK and the USA have security of tenure, which means that they cannot be removed by politicians who do not like the decisions that they make. Once confirmed by the Senate, the US president cannot remove a justice. Justices must be impeached by both chambers in Congress and this has never happened.

Justices in the UK are less likely to show deference to the elected branches compared to the USA. This is because decisions made by justices in the UK are not binding on the elected branches, because the uncodified constitution means that there is an absence of higher law in the UK and, due to parliamentary sovereignty, Parliament can simply pass an Act of Parliament to override a decision made by the justices that sit on the UK Supreme Court. Justices in the USA may be more reluctant to act in this way because the Court’s decisions in the USA can only be overturned by a future court decision or by formally amending the Constitution. Taking this approach to judicial decision making in the USA is referred to as judicial restraint. Justices in the UK have become less restrained in challenging the government in recent years, especially since the creation of the Supreme Court in October 2009 as a result of the 2005 Constitutional Reform Act. We have seen this in cases such as Miller v Secretary of State for the EU in 2017, when the Court ruled that Parliament would have to vote to trigger Brexit, and in 2019, when the Court ruled that Boris Johnson’s prorogation of Parliament was unlawful.

Justices in the USA make more decisions that affect public policy compared to justices in the UK. It is much easier to amend the UK constitution, which means that justices are not relied upon to make social policy decisions, as is the case in the USA. Moreover, issues such as LGBT rights and abortion tend to have widespread support from a number of parties in the UK — the 2013 Same-Sex Marriage bill passed 366–161. However, justices in the USA are required to make more judicial decisions relating to public policy, as the difficult amendment process and lack of consensus over issues such as LGBT rights and abortion in Congress prevents the elected branches from making many of these decisions, leaving it to the justices.

It was the US Supreme Court, in Obergefell v Hodges (2015), that ruled that same-sex marriage should be legalised across all US states. In the USA, judicial decision making with the intention of promoting desirable social ends and shaping public policy is referred to as judicial activism. Justices in the USA can be criticised for taking this approach to judicial decision making because they are not elected and therefore unaccountable.