Comparing the SC and the protection of rights in the US and UK

Question 1

How many justices are there in each SC?

Answer 1

9 in the US and 12 in the UK

Question 2

How is the level of politicisation of SC appointments different?

Answer 2

• In the UK, they are appointed by a special commission convened by the lord chancellor that is non partisan and non political. Definitely less politicised than in the US
• Presidents nominate and senators confirm, putting politicians at the heart of the process in the US. They nominate and confirm justices whose judicial philosophy reflects their own

Question 3

Give an example of these politically motivated appointments in the US?

Answer 3

Neil Gorsuch, Brett Kavanaugh and ACB were all nominated and confirmed by Trump and his R majority in the Senate for having a conservative view of the constitution

Question 4

How is the level of publicity appointments receive different?

Answer 4

• In the US, a new SC appointment will be major news
• In the UK, a new appointment to the SC will be much more low key

Question 5

How does parliament have a weaker role than congress in the appointments process?

Answer 5

Parliament has no role in scrutinising new appointments

Question 6

Why might this change in the future?

Answer 6

Because the UK constitution has become more judicial and the SC has grown in importance

Question 7

How are term limits different?

Answer 7

• In the US, they hold office for life
• In the UK, appointments before 1995 must retire by 75, and more recent appointments must retire by 70

Question 8

How can the US SC be seen as superior in terms of diversity?

Answer 8

• In the UK, only three of the 29 justices there have ever been have been women. There have also been no minority ethnic members
• In the US, there are three women currently on the SC, compared to 2 in the UK. Clarence Thomas is a black justice and Sonya Sotomayor is a Hispanic justice

Question 9

Give an example of a US SC justice who served well past the 75 age limit in the UK?

Answer 9

RBG died in office at the age of 87

Question 10

How does the US judiciary do better in terms of representation than the UK judiciary?

Answer 10

• By 2016, only 25% of justices in England and Wales were women, compared to just under 35% in the US federal courts
• By 2016, only 5% of justices in England and Wales were from minority ethnic groups, compared to around 14% in the US federal courts

Question 11

How can the process for removing an SC justice be seen as equally impractical?

Answer 11

• In the US, they can only be removed by impeachment, which has never been done successfully
• In the UK they can be removed by the monarch following an address by both houses of parliament, which has also never been done

Question 12

How is the amount of justices that will hear cases different?

Answer 12

• In the US, all judges hear cases, unless recused
• In the UK, between 5 and 11 justices will hear the case

Question 13

What are the two different names for the justice who presides over the SC?

Answer 13

• In the US, this is called the chief justice
• In the UK, they are called the president of the SC

Question 14

How is the removal process similar between the two countries aside from a lack of practicality?

Answer 14

Both houses have to consent to removal

Question 15

Under what acts does the UK SC hear devolution matters?

Answer 15

• The Scotland Act (1998)
• The NI Act (1998)
• The Government of Wales Act (2006)

Question 16

Give a quote from Philip Norton which shows why the JR of the UK SC can not be as powerful as that of the US SC?

Answer 16

Under the principle of parliamentary soveriegnty, the judiciary lacks the intrinsic power to strike down an Act of Parliament as being contrary to the provisions of the constitution or any superior body of law

Question 17

How is the way that they scrutinise the executive different?

Answer 17

• In the US, executive actions can be declared unconstitutional
• In the UK, they can be declared ultra vires, which means beyond the authority granted to the executive by acts of parliament

Question 18

How is ultra vires still nearly as powerful as when the US SC declares unconstitutionality?

Answer 18

Because the UK government will still usually back down. Although the government controls parliament and so could have a piece of legislation passed to override the decision, PMs do not want to be seen as acting out of line with the rule of law

Question 19

Give an example of this happening

Answer 19

Because when in Miller v The PM and Cherry v Advocate General for Scotland (2019), where the SC ruled Johnson’s attempt to prorogue parliament unlawful, while Johnson criticised the decision, much like US presidents often do, he abided by it and recalled parliament

Question 20

Give an example of how the US executive can too prove impotent in the face of an unfavourable SC ruling

Answer 20

At the end of the Trump presidency, following the court’s refusal to consider baseless claims of voter fraud in certain states, such as Georgia, which narrowly voted for Biden, Trump was stumped. He could complain on Twitter all he wanted, his claim to have won the 2020 election had constitutionally and politically run its course

Question 21

How is the position of the two SCs within their respective judicial systems similar?

Answer 21

They both act as the final court of appeals

Question 22

What is the primary document that the respective courts use for rights protection>

Answer 22

• In the US this is the constitution
• In the UK this is the ECHR under the HRA

Question 23

How are do the two courts differ in terms of their ability to protect rights and liberties?

Answer 23

• In the US, the SC is supreme hear
• In the UK, the SC will be subject to the ECHR

Question 24

Why do both the UK and US strive for an independent judiciary?

Answer 24

Because an independent judiciary is a cornerstone of liberal democracy

Question 25

Describe how the independence of the judiciary is similar in both systems

Answer 25

• Once appointed, justices are independent of the executive and cannot be coerced into decisions, although politicians and leaders can frequently vent their frustrations about what they think the courts should be doing
• Judges have immunity from prosecution for any acts they carry out in the performance of their judicial function
• They have immunity from lawsuits of defomation for what they say about parties or witnesses when hearing cases
• Their salaries cannot be reduced

Question 26

How was the 1974 US v Nixon case an example of judicial independence?

Answer 26

Because 3 justices appointed by Nixon voted against him in a unianimous decision against the president

Question 27

How was the 1997 Clinton v Jones an example of judicial independence for similar reasons?

Answer 27

Because two justices appointed by Clinton voted against his claim to have immunity from prosecution while he was president

Question 28

Using the reaction of members of the executive to decisions where John Roberts broke the tie, explain why the SC is doing a good job of upholding judicial independence

Answer 28

Because VP Pence called Roberts a great disappointment to conservatives following some of his decisions where he sided with the more liberal justices. However, Obama heavily criticised FEC v Citizens United, showing members of both D and R administrations have been disappointed by the chief justice

Question 29

How was the SC refusal to hear Trump’s spurious claims of voter fraud after the 2020 election an example of independence?

Answer 29

Because the court was split 6-3 in favour of the conservatives, with 3 of the justices having been appointed by Trump himself, yet they unianimously decided to not hear his claims

Question 30

How can the independence of the UK judiciary be seen as much weaker than the US before the 2005 CRA was passed?

Answer 30

• The Law Lords was the highest court of appeals, which was essentially just a committee within one house of the legislature
• The Lord Chancellor was simultaneously head of the judiciary, the presiding officer and the house of lords and a member of the cabinet

Question 31

Who now acts as the head of the UK judiciary?

Answer 31

The Lord Chief Justice

Question 32

Who now acts as the presiding officer in the lords?

Answer 32

The Lord Speaker

Question 33

Give some examples of positions in the UK that involve being part of both the executive and the judiciary, even following the CRA

Answer 33

The Attorney General and the Solicitor General, where they serve as legal advisors to the government but also lead for the crown in major prosecutions

Question 34

Why does this not matter much in terms of the debate over judicial independence?

Answer 34

They do not play any role in deciding or influencing the courts’ eventual decisions

Question 35

How is the importance of the political and philosophical sympathies of SC justices different?

Answer 35

They are widely known in the US but not in the UK

Question 36

Why does the UK appointment system for the SC lend itself better to judicial independence?

Answer 36

Because it is far less politicised

Question 37

How do elected politicians play much less of a role in the UK?

Answer 37

• The president will nominate and the senate will confirm in the US
• In the UK, a non political selection committee will nominate, and while the justice secretary retains the right to reject appointments, in practise this power has not yet been exercised

Question 38

How did Theresa May criticise the UK SC in 2013 while she was Home Secretary?

Answer 38

She criticised the judiciary for what she saw the courts ignoring rules passed by parliament aimed at deporting more foreign criminals. She accused the judges of subverting democracy, making British streets more dangerous and ignoring parliament’s wishes. She said that it was essential to democracy that the elected representatives of the people make the laws that govern this country - not the judges

Question 39

How did Johnson respond to the 2019 Miller v The PM case?

Answer 39

He said that he profoundly disagreed with the courts decision, with a number 10 source saying that the SC had made a profound mistake by extending its reach into these political matters

Question 40

How are these cases of May and Johnson disagreeing with the SC similar to the difficulties the president faces with the US SC?

Answer 40

We can see members of the executive in US and UK being forced to reluctantly accept the judgements of their respective SCs. It is important to note that this still happened in Britain, even though the SC is structurally weaker than in the US

Question 41

What did Brits traditionally rely upon to protect their civil rights as a result of the fact that they were not formally enumerated in the constitution like they are in the US?

Answer 41

AV Dicey’s ‘three pillars of liberty’ - parliament, a culture of liberty and the courts - which between them offered an effective protection of civil rights

Question 42

How was a level of formal enumeration of rights brought into the UK in 1998?

Answer 42

Because the HRA was passed, which incorporated the ECHR into UK statute law. This added into UK law many of those rights we find in the US constitution, such as freedom of expression, freedom of religion, the right to life and the right to a fair trial

Question 43

Describe the similarities and differences between how the respective courts can protect rights

Answer 43

• Both use JR. The US SC will use rulings of unconstitutionality to do this, while the UK SC will use ultra vires rulings to do this
• The UK SC can uphold the provisions of the HRA , while the US SC can uphold the provisions of the constitution

Question 44

How are levels of rights entrenchment different?

Answer 44

They are entrenched in the US and unentrenched in the UK. In the UK they are protected by simple Acts of Parliament, and do not require any special procedures for their removal or amendment. Civil rights enjoy much better structural protection in the US than in the UK

Question 45

Why do higher levels of entrenchment for rights in the US not matter that much in practise?

Answer 45

Because for all of the conservative parties posturing, the HRA has not been replaced even though they won an 80 seat majority with many new right wing MPs. Furthermore, even if they HRA was appealed, the ECHR cannot be amended without the consent of signatories and it would be politically impossible for the UK to pull out of the agreement. Infact, the 2000 FOIA, which made state institutions more accountable and has led to the release of information that otherwise would have been hidden, and the 2010 Equality Act, which gave groups with protected characteristics considerable protection and freedom from discrimination, have been examples of legislation that has been passed to strengthen rights protection in the UK

Question 46

How have both the US and the UK encroached on rights in favour of national security this century?

Answer 46

• The US did this with the Patriot Act post 9/11
• The New Labour government did this following the 7/11 bombings in 2005, with them passing an act that allowed the executive to freeze the assets of suspected terrorists, even after the SC had ruled against this

Question 47

Describe how the overriding cultural belief of the rule of law helps protect rights in both countries

Answer 47

This is an Anglo American concept which stresses, the supremacy of the law, to protection of individual rights from arbitrary state interference from the government, and reinforced respect for the law and adherence to the courts’ enforcement of it

Question 48

How is rights protection a difficult balancing act in both countries?

Answer 48

As one groups rights are protected, another group may feel that their rights have been infringed upon

Question 49

How do the two countries differ in where they look for rights protection

Answer 49

• In the US they look towards the courts and the constitution
• In the UK they look towards the legislature
• This reflects the position of sovereignty in both systems

Question 50

What role do interest groups have in both countries?

Answer 50

They both play an important role in rights protection

Question 51

How was a pressure group influential in the Brown case?

Answer 51

It was the legal defense and the education fund of the National Association for the Advancement of Coloured People (NAACP) that brought the case to the court. Many of the SC’s most important civil rights cases have been sponsored by a pressure group

Question 52

Give some examples of interest groups that have brought cases to the SC

Answer 52

• Citizens United
• National Federation of Independent Business
• Parents Involved in Community Schools

Question 53

Give examples of US pressure groups that focus on abortion

Answer 53

• National Right to Life Committee
• Planned Parenthood
• National Organisation for Women
• Centre for Reproductive Rights
• National Association for the Repeal of Abortion Laws
• National Abortion Rights Action League

Question 54

Give examples of US pressure groups that focus on gun rights

Answer 54

• National Rifle Association
• Brady: United Against Gun Violence

Question 55

Give examples of US pressure groups that focus on race

Answer 55

• American Association for Affirmative Action
• NAACP
• BLM

Question 56

Give examples of US pressure groups that focus on LGBTQ+

Answer 56

• Gay and Lesbian Advocates and Defenders (GLAD)
• Transgender Law Centre (TLC)

Question 57

What does it mean for a pressure group to submit amicus curiae brief to the courts?

Answer 57

Literally means ‘friend of the court’, a legal instance when someone not a party to the case offers to assist the court by offering particular insights, expertise and information. The decision on whether to consider the brief is within the discretion of the court

Question 58

What makes amicus curiae beliefs so important?

Answer 58

It means that someone who is not a party to the case can try and influence the decision of the court. In landmark decisions on things like gun control, abortion and AA, interest groups on both sides of the arguement can influence the debate by submitting these reports. There is evidence that these briefs do influence the court, so pressure groups hire top lawyers to write them

Question 59

How did these briefs have a big impact on AA cases in 2003?

Answer 59

In two cases on the issue, Grutz v Bollinger and Grutter v Bollinger, supporter’s of the University of Michigan’s admissions programmes gave such briefs. Justice John Paul Stevens said in his opinion that the court had relied on the powerful consensus of these beliefs

Question 60

Describe the importance of the American Civil Liberties Union

Answer 60

• They are one of the most influential pressure groups in terms of civil rights and the courts
• It is a non profit organisation formed in the 1920s
• By 2018, it boasted 1.8 million members, a staff of some 300 attorneys and offices throughout the USA
• It joined the NAACP in fighting against school segregation in the 1950s
• Was involved in the landmark Roe v Wade case
• In 1997, ACLU v Reno resulted in the SC striking down the 1996 Communications Dencency Act because of its broad banning of all ‘indecent’ material on the internet
• The is just one example of the ACLU defending rights which many Americans would see as indefensible. It has been criticised for defending the rights of groups such as American Nazis, the KKK and the Nation of Islam

Question 61

What does the ACLU say in defense of the fact that it defends these controversial groups?

Answer 61

They say that they do not defend them because they agree with them, but rather they defend their right to freedom of speech and assembly. Once the government has the power to violate the rights of one, it can use that power against everyone. We work to stop the erosion of civil liberties before its too late

Question 62

What did the ACLU do in the wake of the death of George Floyd?

Answer 62

Became increasingly involved in advocating policing reforms. They say that police brutality is excessively disturbing due to its disproportionate impact on minority communities. It advocates a country where law enforcement treats all communities with respect, employs restraint on police power and only uses the degree of force necessary to maintain the security and safety of a community

Question 63

How did the reaction of the ACLU to the Jan 6 insurrection reinforce the idea that it was only the rights of peaceful protestors that the group supported?

Answer 63

They said that what happened that day was not a protest, but rather a violent insurrection that left 5 dead and many more injured and endangered. Violence, threats and intimidation have no place in the exchange of ideas and are not protected by the 1st amendment

This shows that they did not extend their support of the right to peaceful protest to that of violent protest or use of the 2nd amendment to carry weapons into the Capitol Building. The ACLU supports the right to peaceful protest against excessive police action, but not as supporting violent armed protest

Question 64

Why have UK courts come to have an increase focus on the courts in recent decades?

Answer 64

Given the UK courts increased use of JR, interest groups have been encouraged to focus their campaigning on the courts instead of simply parliament and the relevant government departments

Question 65

Who plays a similar role in the UK as the ACLU does in the US?

Answer 65

The civil rights group Liberty

Question 66

Describe Liberty

Answer 66

• Formed in the 1930s as the National Council for Civil Liberties
• Campaigned for the rights of women
• Campaigned for the rights of protestors against the Vietnam War
• Campaigned for civil rights during the troubles
• Early supporter of gay rights
• Has come to play a prominent role in defending civil liberties in the courts in recent decades following the anti terrorist legislation passed by parliament in 2005
• Today it campaigns on issues such a torture and extradition, as well as the rights of asylum seekers, refugees and members of the armed forces
• Prominent in campaigning against animal slavery

Question 67

How is rights protection a balancing act in the UK in much the same way as it is in the US?

Answer 67

In the UK the effective protection of the rights of one group leads to concerns over the infringement of the rights of another group, with a resulting clash of pressure groups lobbying the courts

Question 68

Give an example of this happening in the UK

Answer 68

The Ashers Bakery case in NI, in which the Christian owner of the bakery, Colin MacArthur, was prosecuted under the Eqaulity Act for refusing to bake a cake for Gareth Lee with the slogan ‘support gay marriage’. References were made during this case to various sections of the ECHR. The case went all the way to the SC in 2018, which went in favour of ashers, much to the chagrin of many but to the support of others

Question 69

Which pressure groups supported McArthur’s case?

Answer 69

It was taken up by the interest group Christian Institute, whose Legal Defence Fund fights civil rights cases where Christians are being prosecuted for matters relating to the practise of their faith

Question 70

How supported Lee’s case?

Answer 70

Many gay rights groups

Question 71

Why can it be argued that pressure groups have a greater influence on the courts in the US than in the UK?

Answer 71

Because of the opportunity for amicus curiae briefs

Question 72

How can it be argued that pressure groups have a big impact on the courts?

Answer 72

Because they both add publicity and financial resources to key cases

Question 73

How can it be argued that their impact on the courts is still not that great despite this?

Answer 73

They arguably just entrench and exascerbate strongly held existing views on both sides of the policy divide