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Comparing the Judiciaries - Coggle Diagram
Comparing the Judiciaries
Similarities and Differences Between the Supreme Courts
History
Set up hundreds of years apart, though rationale was the same (independent judiciary separate from other two branches of government**
Selection and Appointment of Justices
Both use detailed scrutiny, there is a fundamental different in the way justices are selected.
UK selected by independent selection committee, then presented to the Lord Chancellor (government minster)
US presidential nominees, confirmed by Senate.
Characteristics of Justices
No official requirements for US judge, in the UK, they must have been a senior judge for 2 years or a solicitor in one of the highest courts for 15 years.
Women and ethnic minorities are both underrepresented in both courts.
The US has had a higher proportion of women, but never a female Chief Justice, unlike President Lady Hale.
Tenure of Justices
Both enjoy security of tenure, only removed by impeachment or judicial complaints procedure.
UK justices must return by age 70.
Judicial Approach
Some US justices, mainly Conservative, practice judicial restraint, similar to UK judges who follow precedent and defer to parliament.
Impact on Government and Politics
Both courts have made controversial rulings, US Supreme Court has the power to interpret the constitution and rule Acts of Congress and the executive as unconstitutional.
The UK will never have as much pwoer as the US Supreme Court, as parliament is sovereign, thus can ignore or overturn any controversial ruling.
Impact on Culture and Society
US judgements such as Brown v Topeka and Roe v Wade have had profound impacts on the culture and society, in a way incomparable to the UK.
Impact on the Executive
Parliamnetary sovereignty gives the Court a narrower remit, than interpreting the sovereign Constitution.
Two of UK Court’s most controversial judgements were in defence of parliamentary sovereignty.
Impact on Devolution and Federalism
US landmark rulings extended the scope of federal law at the expense of the states, strengthening the federal government.
The UK SC ruled sovereignty of parliament when Scottish Parliament had gone beyond its devolved powers seeking to write its own laws on areas of EU law returned to the UK after Brexit.
Bases and Extent of Powers
The US Supreme Court’s powers come from the US Constitution
Marbury v Madison 1803, the Court awarded itself by striking down an Act of Congress.
The UK Supreme Court was created by an Act of Parliament (Constitutional Reform Act 2005)
Reviews legal precedent as it does not have a codified constitution
Extent of Powers
Final Courts of Appeal
Previously for the UK, this was the European Court of Justice, but is still a signatory to the European Convention on Human Rights so although adopted into the HRA 1998, can still be brought to the ECtHR.
Judicial Review
Important check on the government
US justices consider the legality of governemnt actions and may find them unconstitutional or
ultra vires
.
Protection of Rights
The US SC can strike down laws that infringe the Bill of Rights , whereas the UK SC can only identify a law as being incompatible with the HRA. Parliament can ignore this.
HRA is not entrenched so parliament can pass a new law to modify it, and could withdraw form the ECHR. They can also pass retrospective legislation.
Relative Independence of the US and UK Judiciaries
Judicial Independence
Essential for the rule of law, allowing justices to make decisions based solely on the law.
Judicial Politicisation
Ability of presidents to appoint liberal or conservative justices.
Political or Public Pressure
If judges make a decision to avoid negative publicity or criticism from key politicians, they re not acting independently.
Evolved during the lifetime of the UK SC, with Theresa May as Home Secretary in 2013 they were ‘ignoring’ deportation law making it harder to deport foreign national;s who were criminals.
Structural
Security of tenure allows justices to make independent judgements.
Separation of powers gives the judiciaries independence from other branches.
Entrenched fundamental laws have produced a more powerful judiciary in the US.
Parliamentary sovereignty limits the pwoer of the UK SC.
Independent appointments process of UK justices so do not have obvious liberal/ conservative leanings.
Rational
Justices should take a rational approach to the law, thus reaching a unanimous agreement. However, the law is difficult to determine.
Indivual justices make decisions based on legal preferences and philosophy.
US presence of liberal/ conservtaive judges means judgement as are often controversial, accused of judicial activism.
Judiciaries often censured by individuals wanting to advance their own interests
Trump appointed unprecedented numbers of appeal corut judges and 3 Conservative justices.
Johnson appointed an attorney general, Suella Braverman, who argued parliament needed to ‘take back control’ from the judiciary.
Cultural
Both prize the rule of law and judicial independence, dating back to the Magna Carta, pride themselves as the best of Western liberal legal tradition, holding the governemnt to account.
Populism has risen with Trump and Johnson, criticising the judiciary for supposedly thwarting the will of the people. Media intervention can politicise the judiciary.
In the US, landmark rulings have created cultural battles between liberals and religious groups over issues such as abortion and marriage. UK deference to parliament means its judgements are less significant.