Comparing judiciaries Flashcards
Describe the historical context of the US Supreme Court (USSC) and the UK Supreme Court (UKSC).
The USSC was established as an integral part of the Constitution in 1790, intended to provide an independent judiciary. In contrast, the UKSC is a much younger institution, created after the UK Law Lords previously sat in the Appellate Committee of the House of Lords, which was not separate from Parliament.
Explain the selection process for justices in the US and UK.
In the US, justices are political appointees nominated by the president and confirmed by the Senate, making the process highly politicized. In the UK, justices are selected by an independent selection commission, which recommends candidates to the Lord Chancellor for approval, resulting in a less politicized process.
How do the characteristics of justices differ between the USSC and UKSC?
UK justices must have significant legal experience, such as being a senior judge for at least two years or a barrister for 15 years. In the US, there are no official requirements, but modern appointees typically have substantial legal or judicial experience.
Discuss the representation of women and minority ethnic groups in the USSC and UKSC.
The USSC has a higher proportion of women and three justices from minority ethnic groups, while the UKSC has no justices from minority ethnic groups and has had a female president, Lady Hale, from 2017 to 2020.
What is the tenure policy for justices in the US and UK?
Both US and UK justices enjoy security of tenure and can only be removed for wrongdoing. However, UK justices must retire by age 70, while US justices have life tenure and can choose to retire.
Explain the criticisms surrounding the retirement age of UK justices.
The mandatory retirement age of 70 for UK justices has been criticized for forcing unnecessary retirements, potentially removing justices from their roles while they are still capable, as exemplified by Lady Hale.
Describe the judicial approaches of justices in the US and UK.
Some US justices, mainly conservative, practice judicial restraint, similar to UK justices who follow precedent and defer to Parliament. However, some US justices advocate for a living constitution, which can lead to judicial activism, while UK justices have a more limited interpretive role.
How do the Supreme Courts of the US and UK impact government and politics?
Both the USSC and UKSC have made politically controversial rulings, including declaring government actions unlawful and ruling against laws passed by the legislature.
Define the role of the Lord Chancellor in the UK justice selection process.
The Lord Chancellor receives recommendations from the independent selection committee for justices and can approve or reject one name with good reason, or ask the committee to reconsider, but must confirm the appointment thereafter.
Do justices in the USSC and UKSC face similar challenges regarding diversity?
Yes, both courts face challenges with underrepresentation of women and minority ethnic groups, although the USSC is more diverse compared to the UKSC.
Describe the impact of the US Supreme Court (SCOTUS) on public policy.
SCOTUS has made significant rulings that have shaped public policy, including landmark cases such as Brown v Board of Education, Roe v Wade, and Obergefell v Hodges.
Explain the difference in the power of judicial review between SCOTUS and the UK Supreme Court (UKSC).
SCOTUS has the power of judicial review established in Marbury v Madison, allowing it to rule laws unconstitutional, while UKSC’s power is more limited as it cannot declare Acts of Parliament unconstitutional.
How does parliamentary sovereignty affect the UK Supreme Court’s (UKSC) rulings?
Parliamentary sovereignty limits UKSC’s remit, as it must defer to Parliament’s intentions when interpreting laws, and it cannot overturn Acts of Parliament.
Define the role of the US Constitution in the powers of SCOTUS.
The US Constitution, specifically Article III, established SCOTUS and granted it the judicial power to interpret laws and govern actions taken by Congress.
Do both the US and UK Supreme Courts serve as final courts of appeal?
Yes, both SCOTUS and UKSC serve as final courts of appeal, although UKSC’s role was affected by EU law while the UK was a member of the EU.
Explain the significance of the Miller cases in the context of UKSC’s rulings.
The Miller cases were politically controversial rulings where UKSC defended parliamentary sovereignty against government actions, highlighting the limits of executive power.
How has SCOTUS impacted federalism in the United States?
SCOTUS has extended the scope of federal power at the expense of states’ rights through landmark decisions like Brown v Board of Education, Roe v Wade, and Obergefell v Hodges.
Describe the relationship between the UKSC and the European Court of Human Rights (ECtHR).
The UK is a signatory to the ECHR, which allows individuals to seek justice for human rights breaches in the ECtHR, while the UKSC interprets the Human Rights Act 1998, which incorporates ECHR rights into UK law.
Explain the concept of judicial review in the context of the UK Supreme Court.
Judicial review in the UKSC is limited; it reviews legal precedents and applies them to new cases but cannot rule Acts of Parliament unconstitutional.
How does the lack of a codified constitution in the UK affect the UKSC’s operations?
Without a codified constitution, UKSC reviews legal precedents, constitutional conventions, and common law, interpreting laws based on written parts of the British Constitution like the Human Rights Act 1998.
Define the term ‘legislating from the bench’ as it relates to US justices.
‘Legislating from the bench’ refers to the criticism that US justices face when they are perceived to be making law through their rulings rather than simply interpreting existing laws.
Describe the impact of the UK Withdrawal from the EU on the UKSC’s rulings.
The UK Withdrawal from the EU led to a UKSC ruling that the Scottish Parliament exceeded its devolved powers by attempting to legislate on areas of EU law that were to return to the UK.
Describe the concept of judicial review in the context of the US and UK.
Judicial review is a check on government power where courts assess the legality of government actions. In the US, the Supreme Court (USSC) can declare actions unconstitutional, while in the UK, the Supreme Court (UKSC) can declare actions ultra vires. However, the UK government can sometimes override UKSC rulings.
Explain the difference in the power of judicial review between the USSC and UKSC.
The USSC has greater power of judicial review, as it can strike down Acts of Congress deemed unconstitutional. In contrast, the UKSC cannot strike down laws due to parliamentary sovereignty; it can only review government actions.
