Comparing Judiciaries (US) Flashcards
(20 cards)
1
Q
What are the differences between the history of the US and UK Supreme Courts?
A
- Both were intended to provide an independent judiciary.
- US Supreme Court part of the constitution and sat for the first time in 1790.
- UK Supreme Court first opened in 2009 - initially sat in the appellate committee of the Lords.
2
Q
What are the differences between the selection and appointment of justices in the US and the UK?
A
- Both have detailed scrutiny of candidates.
- US justices are political appointees nominated by the president and confirmed by the senate.
- UK justices are elected by an independent commission before being presented to the Lord Chancellor.
3
Q
What are the differences between the characteristics of justices in the US and the UK?
A
- UK justices must have been a senior judge for 2 years or been a barrister for 15.
- In the US there are no official requirements - but modern appointees tend to have significant legal or judicial experience.
- Women and ethnic mines underrepresented in both - more women in US - but never had a female chief justice.
- The UK has - Lady Hale (2017-2020)
- No ethnic minorities on the UK Supreme Court compared to 2 on the US courts.
4
Q
What are the differences between the tenure of justices in the UK and US judiciaries?
A
- Both UK and US justices enjoy security of tenure.
- Both can only be removed through impeachment.
- UK justices must retire age 70 - unless they were appointed before 1995.
- US justices have life tenure - they can however choose to retire.
5
Q
What are the differences between the judicial approach of justices in the US and the UK?
A
- Some US justices (mainly conservative) practise judicial restrain - similar to UK justices.
- Some US justices however believe that it is there role to interpret the ‘living constitution’ in a modern context.
- UK justices have more limited and interpretative role.
6
Q
How have UK and US supreme courts impacted culture and society?
A
- US Supreme Court made important judgements.
- Brown V Topeka (ends segregation).
- Roe v Wade ( legalising abortion).
- Obergefell v Hodges (legalises same sex marriage).
- UK Supreme Court has not made judgements with a comparable impact.
7
Q
What are the differences on the impact that the UK and US judiciaries have had on the executive and legislature?
A
- Constitution sovereign in the US and provides a sent of ‘fundamental laws’ for US justices to apply.
- US justices are accused of legislating from the bench.
- UKSC has a smaller remit - most controversial case was stopping the prorogation of parliament in R Miller v PM (2019)
8
Q
What is the difference between the impact that the Supreme Court has had on federalism and devolution in the US and UK?
A
- Both play a role in defining the rights of federal or devolved bodies.
- UK withdrawal from the EU (Scotland Bill) - UKSC ruled that the Scottish parliament had gone beyond its devolved powers by seeking to write is on laws on certain areas of EU.
9
Q
What are the differences between the bases of power for the US and UK judiciaries?
A
- Article III of US constitution established the SCOTUS.
- Marbury v Madison (1803) - sets up the precedent of the court striking down legislation from congress.
- UKSC created in Constitutional Reform Act (2003).
- UK doesn’t have a codified constitution - therefore it has less significant powers.
- UKs justices defer to parliament where as US justices look at constitution.
10
Q
What are the differences between the power of judicial review between the US and UK judiciaries?
A
- USA SCOTUS can find government actions unconstitutional and therefore illegal.
- UKSC can only declare legislation ultra vires.
- Parliament can pass retrospective legislation - authorising actions of a government.
- In the UK judicial review only applies to government actions rather than Acts of parliament - parliamentary sovereignty.
11
Q
What are the differences between the ways in which the UK and US Courts protect rights?
A
- SCOTUS can strike down laws that infringe on the Bill of Rights.
- UKSC can only declare acts as being incompatible with HRA (1998)
- Parliament can ignore declarations of incompatibility.
- The government could withdraw from the ECHR if it wanted to.
- In the US rights are entrenched and can only be changed through a constitutional amendment.
12
Q
What are the differences between constitutional interpretation in the US and UK Supreme Courts?
A
- US Supreme Court has a greater role in interpreting the condition.
- Landmark cases effectively change the constitution - act as interpretative amendments.
- UKSC cannot make sweeping changes - however can clarify its meaning - eg the definition of a woman.
13
Q
What are the difference between judicial independence in the US and UK courts?
A
- US and UK systems both encourage judicial independence.
- Should allow them to make decisions based on the law.
- In both the judiciary are structurally and physically independent from the other two branches of governments.
- Indepence allows them to rule against the government.
- United States v Texas (2016) - struck down Obamas executive order giving millions of illegal immigrants an indefinite delay in deportation.
- Rwanda case - suggested that the governments actions were incompatible with ECHR.
14
Q
What are the difference between judicial politicisation in the US and UK courts?
A
- Republican president in the US less likely to be challenged by a conservative majority court.
- Bush v Gore (2000) - conservative majority court voted (5-4) against a recount - effectively making Bush President.
- Justices do however rule against the political interests of the politicians who appointed them - Gorsuch and Kavanaugh in Trump v Vance.
15
Q
What is the current composition of SCOTUS ideologically?
A
6-3 conservative majority.
16
Q
How can presidents influence lower courts?
A
- Senate Republicans blocked Obama’s nominations to the court of appeals and judiciary broadly.
- more than 100 seats were waiting to be filled when Trump took power.
- in his first term Trump appointed 54 appeal court justices - average of 50 to ensure a long-term legacy of conservative justices.
- Biden appointed 187 justices to district courts.
17
Q
What are the differences between the ways that justices are influenced by public pressure in the US and UK?
A
- 2017, the UK’s Lord Chief justice said that social media abuse put judge sunder intolerable pressure.
- Trump used twitter to condemn justices 0 compared the Trump v Vance ruling as a witch-hunt.
- Daily Mail calling justices ‘enemies of the people’ after ruling that the government could not trigger Article 50 without parliament’s consent.
18
Q
What are the structural theory comparison of the judiciaries?
A
- Security of tenure - allows for independent judgements.
- Separation of powers also allows for judicial independence.
- Entrenched fundamental laws in the US provides a more powerful judiciary than in the UK - SCOTUS can use its powers for judicial activism.
- Parliamentary sovereignty limits the power of the UKSC.
- Appointing US justices is a political process - UK justices are independent appointed and do not have liberal or conservative labels.
19
Q
What are the rational theory comparisons of the judiciaries?
A
- Justices should take a rational approach to the law - justices make an individual judgement based on their pwn personal analysis.
- Individual justices make decisions based on their own legal preferences and philosophy. In the US decisions made by justices are frequently controversial.
- Judiciaries are often censured by individuals aiming to advance their own interests.
- Trump appointed unprecedented number of appeal court judges.
- Johnson appointed attorney general Suella Braverman who argued that parliament needed to take back control of the judiciary.
20
Q
What are the cultural theory comparisons of the judiciaries?
A
- Both cultures prize the rule of law and judicial independence - dates back to the Magna Carta (1215).
- US inherited this as it used to be part of Britains empire.
- Populism has been on the rise in the US and the UK. Have criticised the judiciary of thwarting the will of the people. Daily Mail labelling the UKSC as the ;enemies of the people.
- SCOTUS defines citizens rights in landmark judgements - issues such as abortion and same sex-marriage.
- UKSC has a much lower profile and its deference to parliament means that its judgements are less significant.
