AQA A level Politics - US Judiciary (USSC)

Judicial Review

Judiciary scrutinises actions and legislation of the legislative and executive branches, and has the power to determine whether they are acting within their powers

Decides whether things are compatible with the US constitution

'Found' in Marbury v Madison 1803

what are the functions of the Supreme Court?

adjudicate on the meaning of the constitution and the law

uphold the rule of law

act as a check and balance on other branches and tiers of govt

protect rights and liberties, especially in the face of tyranny of the majority

Judicial Activism

An approach to judicial review in which a judge is more willing to interpret the meaning of the constitution, to nullify actions or legislation and to overturn precedent

Judicial Restraint

An approach to judicial review under the doctrine of restraint, which urges judges to refrain from deciding legal issues, especially constitutional ones unless absolutely necessary, and to be reluctant to overturn precedent

Loose Constructionism

To view the constitution as a living document which can be interpreted differently overtime as society evolves; links with judicial activism

Strict Constructionism

An advocate of a literal interpretation of the constitution favoured more by conservative justices, limiting judicial review by limiting the amount a justice may interpret the constitution; links with judicial restraint

Judicial Independence

Concept that the judiciary needs to be kept separate from the other institutions/branches of government to truly be politically independent; this prevents improper influence from political branches on the decision of the supreme court based on private or partisan interests

US Supreme Court

Highest court of law in the US established by Article III of the constitution; only certain cases are appealed and taken on my the court - typically 80-100 out of 9000-10,000 submissions, less than 1% of cases making it to the Supreme Court

US Courts of Appeals

Established by Congress to share the huge work-load of cases

13 federal courts just below the Supreme Court divided among 12 geographical regions plus 1 for the federal circuit

These courts hear appeals from decisions of district courts challenging the ruling made from courts within their district/circuit

US District Courts

Established by Congress to share the huge work-load of cases

94 district courts below the US Courts of Appeals divided among 12 geographical regions plus 1 for the federal circuit

These courts hear civil cases and criminal cases

Appointments and Dismissals

Limit the powers of the supreme court as a check on their power by Congress

Justices must be nominated by the President, then the decision must be ratified by a majority in the Senate

Additionally, Congress has the power to impeach a justice

Impeachment Process

Congress can impeach a justice on terms of: treason, bribery, high-crimes, and misdemeanours

The House holds a majority vote on whether a justice should be formally accused and impeached, then the Senate holds a trial to determine whether the justice is guilty, and a vote is held on whether the justice should be removed

Difficulty Enforcing Decisions

The SC relies on other branches of government to enforce the rulings and decisions it makes; for example the court unanimously rules 'separate educational facilities are inherently unequal' in Brown v Board of Education (1954), yet southern states refused to comply (Gov. of Arkansas and President Eisenhower's retaliation to south at Little Rock in '57 to enforce court decision, plus CRA in 1964)

Congress' power to shape the Court

Constitution grants Congress with power to decide the number of districts, cases the court can hear, and the number of justices; the Judiciary Act (1789) requires 6, but doesn't set a limit:

2017 - 9 justices

Inability to Bind Future Courts

Justices, mores ones who favour judicial activism and loose constructionism, say precedent can be overruled if they no longer work, and society largely rejects the ruling in the present day

e.g. Plessy v Ferguson (1896) and Brown v Board of Education (1954)

Compensation for Justices

As declared in Article II of the constitution, Congress nor the executive may diminish the salary of a Supreme Court Justice in any attempt to pressure their decisions, upholding judicial independence

Stage I of the Appointment Process

Vacancy:

A justice must retire, die, or be impeached for a vacancy to open

On average, there is a vacancy every 2 years, and Presidents usually can select 1-2 during their terms

- Nixon was luckier and nominated 4 justices

Stage II of the Appointment Process

Advisement of potential candidates:

President's advisors draw up a shortlist of suitable candidates - though the constitution doesn't actually lay any standard requirements for a justice

if they are a judge, their previous rulings will be scrutinised to gauge their judicial philosophy

eg trump promised he would select judicial nominees from candidates suggested from conservative legal group, the federalist society

Nomination Pool for Justices

Mostly from US Court of Appeals and US Department for Justice

e.g. Trump / Gorsuch from court of Appeals 2017

eg in 2021 8 out of 9 supreme court justices had previously sat in court of appeals

Stage III of the Appointment Process

Scrutiny:

FBI does a background check on possible candidates with record checks and interviews, completing a report which is sent to the Senate Judiciary Committee eg Anthony Kennedy was interviewed by FBI for more than 10 hours

American Bar Association then rates the nominees on a scale of 'well qualified', 'qualified', and 'not qualified' - rare for a nomination not to be endorsed by ABA, in last 9 nominations, only Clarence was just 'qualified'

Stage IV of the Appointment Process

Confirmation Process:

Senate Judiciary Committee interview nominee and other witnesses (e.g. Anita Hill for Clarence Thomas 1991- his former colleague who accused him of sexual harassment), then committee takes a vote which is only advisory but may indicate the ease with which a judge will be confirmed. Has become more partisan in recent years e.g. Kavanaugh widely politicised in media 2018 (partisan witch hunt)

Then, Senate holds a vote, requiring a majority vote to be confirmed, process also more partisan. Defeat at this stage is unlikely, but possible (Bork) -presidents will usually pick someone they are sure will have support of necessary senators

how could it be suggested the SJC hearings are just a partisan witch hunt?

since rejection of Bork in 1987 senators now wish to score political points and play to their base

nominees have their entire personal and political life put under a microscope searching for a 'skeleton in the closet'

eg 1991 Clarence Thomas hearings revealed allegations of sexual misconduct from his former college Anita Hill

eg Brett Kavanaugh's hearings Dr Ford was called in to testify against him, extracts from his high school yearbook shown (not really relevant)

questions public confidence in the court (character, temperament and judgment of judges) - at an all time low of 25% (public confidence)

-could be argued this is necessary for such a high profile role, life tenure

how could it be argued people are nominated solely because of their ideology?

only opportunity for president to place ideological allies in another branch of govt and life tenure so can shape direction of court for years to come

politicians in robes questions legitimacy for the court

eg Trump's list from federalist society

can erode rights with 6-3 majority: Roe v Wade

eg Amy Coney Barret got no votes from Democrat senators -1st time this had happened

justice mirror ideological view of president now

but can be free once on court- Souter

eg John Roberts voted with the liberals on NFIB v Sebelius( 2012) upholding Obamacare as constitutional

lower calibre candidates can ne nominated and confirmed

qualifications aren't laid out in constitution

eg Clarence Thomas only had 1 year experience as a judge but he was still confirmed ('qualified' by ABA)

unsuitable candidates that end up being withdrawn are a huge waste of the senates time eg Harriet Miers who was labelled as 'inadequate, insufficient and insulting'

qualifications isn't main factor for presidents - ideology, age, demographics ect

how does senate act as a check and balance on President's power of appointments?

particularly when opposition party controls the senate

historically 1 in 5 nominees have been rejected (most recent Robert Bork)

Nixon suffered rejections of Haynsworth 55-45 because he hadn't upheld high standards of ethical conduct when acting on a lower court

eg Republican controlled senate still wouldn't allow Miers to pass to SCOTUS because she wasn't a suitable nominee so she was forced to be withdrawn

this check is undermined when president's party controls the senate

how does the process incorporate peer review

assessed by professionals within a professional field and they have the best knowledge and expertise to assess suitability of a candidate

so American Bar Association (ABA) reviews all supreme court justices and gives them a rating

it is a non partisan professional group

but this judgement isn't binding and even when Clarence Thomas was not found well qualified he was confimed

how does the process produce a socially representative judiciary

the need for the court to 'look like America'

EGG formula, the court can improve its legitimacy if it is socially representative- citizens are more likely to have confidence in the court that looks like them

presidents may try to appeal to a certain section of the electorate eg Reagan with Sandra Day O'Connor who is 1st women to be appointed

eg Obama with Sonia Sotomayor 1st Hispanic justice

eg Biden promised to appoint an African American women

allows court to catch up with changing social attitudes on gender and ethnicity

Failure of the Bork Nomination

1987; Bork was extremely qualified but extremely conservative - he had criticised the CRA (1964) for breaching states' rights, and criticised the SC decision in Griswold v Connecticut (1965) which enforced the fundamental right to privacy.

Democrats scrutinised him profusely on the Senate Judiciary Committee, grilling his conservative views, Bork gave weak responses; in a 9-5 vote Bork's nomination was sent to the floor for a vote as 'unfavourable' - all Democrats (such as Chair of the Committee Joe Biden) supported this motion, all Republicans did not.

Became known as being 'Borked'. Academics mark this case as being a fundamental change to the process, going from a test of competence to a test of ideology

Appointments based on Ideology

Conservative justices all appointed by Rep. Presidents:

Alito, Roberts, Thomas, Gorsuch, Kavanaugh

Liberal Justices all appointed by Dem. Presidents:

Kagan, Sotomayor, Breyer, RBG

Evidence of the Confirmation Process becoming more partisan

In 1986, Scalia had an 18-0 unanimous vote in the SJC, and was confirmed by the Senate 98-0

In 2018, Kavanaugh had a 11-10 vote in the SJC along party line, and was confirmed 50-48 in the Senate with only 1 Democrat in favour

eg in 2020 Amy Coney Barret became the 1st supreme court justice in over 150 years to not receive a single vote from other party

what happened with Obama's nomination of Merrick Garland?

in 2016 Obama nominated him to court but republicans held the senate and declared they wouldn't consider him because there was a presidential election due in November, so Trump as able to fill the post

when the same situation arose in 2020 following death of RBG, republicans were eager to take advantage of their senate majority and quickly confirmed Barrett

what happened with Harriet Miers?

she was nominated by W. Bush in 2005 but she didn't have enough experience and was seen by republicans as being too moderate and so Bush withdrew her nomination

Clarence Thomas

Associate Justice nominated in 1991 by George H.W. Bush

Conservative

Ruth Bader Ginsberg

Associate Justice nominated in 1993 by Clinton

Liberal (died in 2020)

Stephen Breyer

Associate Justice nominated in 1994 by Clinton

Liberal, believes in 'Living Constitution' (retired 2022)

John Roberts

Chief Justice nominated in 2005 by G.W. Bush

Conservative

Samuel Alito

Associate Justice nominated 2006 by G.W. Bush

Conservative

Sonia Sotomayor

Associate Justice nominated in 2009 by Obama

Liberal

Elena Kagan

Associate Justice nominated in 2010 by Obama

Liberal

Neil Gorsuch

Associate Justice nominated in 2017 by Trump

Conservative

Brett Kavanaugh

Associate Justice nominated in 2018 by Trump

Conservative

( 1st time all justices align with judicial philosophy of appointing president)

replaced Kennedy- swing vote

Amy Coney Barrett

Associate Justice nominated by Trump in 2020

conservative

6-3 conservative majority

Ketanji Brown Jackson

associate justice nominated by Biden in 2022

liberal

First African American woman to be a Supreme Court justice

what factors does a president have to consider when nominating a supreme court justice?

judicial philosophy: eg trump appointing Kavanaugh who had a conservative track record on abortion and Barrett who was hostile to Obamacare

acceptability of appointee in senate: eg Reagan nominated Bork who was overtly ideological and rejected by democrat controlled senate for being outside political mainstream, so he nominated more moderate Kennedy who was confirmed 97-0

age of nominee- need experience but also want them to serve for a long time eg Amy Coney Barret confirmed at 48 making her youngest women, eg Sonia Sotomayor had served 11 years on court of appeals

EGG formula- ethnicity, gender and geography eg Roberts court is most diverse in history

what is the role of the chief justice?

chair the court, decide which justice writes the opinion when they are in the majority and chairing presidential impeachment trial in senate eg Roberts chaired trump's impeachment trial

example of judges being independent once appointed

have life terms so president can't influence them once appointed eg George H.W Bush appointed souter in 1990 and he became an unexpected liberal member of the court

eg trump's nominees Gorsuch and Kavanagh both voted that president didn't have the right to withhold his tax returns and financial records in Trump v Vance (2020) and Trump v Mazars (2020)

Supreme Court being Strict Constructionist

Schechter v US (1935), NRA struck down over commerce clause (carrying poultry over states)

US v Lopez (1995), the Supreme Court struck down the Gun-Free School Zone Act (1990) to protect 2nd Amendment rights

Supreme Court being Loose Constructionist

Roe v Wade (1973), the Supreme Court voted 7-2 that the 14th amendment gives the constitutional right to privacy, thus protecting a woman's right to privacy if she chooses to have an abortion

Loose constructionists were happy with the ruling because they looked at the Due Process Clause, which protects 'life, liberty, or property' and argue privacy is fundamental to liberty, so it is an implied right by the constitution

Strict Constructionist/Originalists against Roe v Wade (1973)

Argue the constitution does not explicitly say anything about a right to privacy, therefore cannot be used to uphold abortion rights

Originalists say the 14th amendment was a response to former slaves following the civil war, and should be interpreted in that context, not for abortion rights

Arguments in favour of Originalism and Strict Constructionism

- Founding Fathers deliberately created a difficult amendment process to prevent an unelected judiciary regularly making their own changes

- Originalism is a more objective approach; based on original intent and not judges' opinions

- Decisions under originalism are more consistent and predictable, providing more confidence and stability in government and law

Arguments in favour of Loose Constructionism

- Founding Fathers intended for wording to be vague, suggesting they wanted the constitution's interpretation to change and evolve over time to endure for centuries

- Say originalists are just as subjective and inconsistent as they claim loose constructionism to be, as Supreme court Justices are not historians; there is not clear or sufficient enough evidence for how the constitution was interpreted at the time of ratification

- Can the original meaning be applied to radical new developments in society? Such as technology, internet, faster travel etc.

The 2nd Amendment and how it weakens Strict Constructionism/Originalism

It is incredibly vague and had been debated for decades - does it protect the right to form a militia, or for individual rights to gun ownership?

Media Definition of Judicial Activism

Usually meant critically; justices have based their interpretation on personal views, rather than on the constitution

Media Definition of Judicial Restraint

Justices only strike down laws and precedent that is clearly unconstitutional

Warren Court (1954-69) Accused of Judicial Activism

- Challenged precedent of Plessy v Ferguson (1896) in Brown v Board (1954) under the Equal Protection Clause of the 14th Amendment- struck down 'separate but equal' institutions, removing legal justification for segregation

- Struck down the law in Miranda v Arizona (1966) under the 5th amendment, enforcing 'Miranda Rights' across the entire US

- Struck down government directed prayer in public schools as the law violated the Establishment Clause of the 1st Amendment: "Congress shall make no law respecting an establishment of religion."

Burger Court (1969-86) Accused of Judicial Activism

- Overruled state laws on abortion in Roe v Wade (1973) under the right to privacy implied in the constitution

- Struck down California law in University of California v Barke (1978) under the 14th amendment of equal protection

-US v Nixon (1974) unanimously ordered Nixon to deliver tape recordings related to Watergate scandal amid impeachment proceedings

Rehnquist Court (1986-2005) Accused of Judicial Activism

- Bush v Gore (2000) ruled to end the recount in 4 Florida Districts, overruling the State Supreme court, especially deciding the outcome of the election (Bush would be President)

- In US v Lopez (1995) the court ruled the Gun Free School Zones Act 1990 exceeded Congress' power under the commerce clause, thus was less willing to give Congress power over states

- Struck down many provisions in the federal government's Violence Against Women Act for exceeding Congress' power under the commerce clause, again, reluctant to expand the scope and power of the federal government

Roberts Court (2005-present )Accused of Judicial Activism

- Upheld the Controlled Substances Act under the commerce clause in Gonzales v Raich (2003) despite popular California law of legalising the medical use of marijuana. Why can Congress not regulate guns under US v Lopez (1995), but can regulate drugs in this case?

- Overturned decades of precedent in DC v Heller (2008), protecting an individual right to carry guns under this new interpretation of the 2nd Amendment by the SC

- Struck down the Bipartisan Campaign Reform Act for violating the 1st amendment right to free speech in Citizens United v FEC (2010); Obama famously said "it will open the floodgates for special interest"

- Obergefell v Hodges (20150 struck down state laws criminalizing same-sex marriage (made same-sex marriage legal across US)

Roberts Court Accused of Judicial Activism pt2

- NFIB v Sibelius (2012), aka the 'Obamacare' case - the SC ruled that while the 'individual mandate' within the ACA was incompatible with the commerce clause, it was upheld by Congress' power to levy taxes. This dissent not only angered conservatives, but also angered liberals and Obama, who had repeatedly stated the individual mandate provision of the ACA was not a tax

- Shelby County v Holder (2013) struck down key provisions in the VRA (1965) despite having m majority support in Congress when the act was reauthorised in 2006; Justice Ginsberg called it "stunning in terms of Activism"

Justification for Judicial Activism

- The executive and legislative branches can sometimes act unconstitutionally, so the court needs to be able to effectively fulfil its role as a check and balance, otherwise it would undermine the SoP

- Previous Supreme Curt can also make errors, so future courts should challenge precedents that are outdated and unworkable

- The Framers wanted to avoid tyranny of the majority, so the SC is vital for defending minorities who're suffering at the hand of the majority

- Other branches are reluctant to make controversial but necessary changes, and Judicial Activism has brush significant social changes on the US; and when it suits them, Liberals and Conservatives are in favour of an activism court

Arguments Against Judicial Activism

- Judges lack accountability since they are appointed and act under judicial independence, so arguably they should defer to the elected branches

- Judges are not experts on social policy, only on law; efforts to legislate from the bench can create problems, so should be left to the other branches as much as possible

- Frequently ignoring the precedent of other courts undermines the authority of its own decisions; the court relies on public support and respect, but if courts are inconsistent with heir rulings, they'll loose support

- Judges should only strike down laws which are clearly unconstitutional where they have broad agreement, otherwise they look politically influenced and lack legitimacy

5-4 Decisions are High Profile and Important

Bush v Gore (2000)

DC v heller (2008)

Citizens United v FEC (2010)

NFIB v Sibelius (2013)

Shelby county v Holder (2013)

US v Windsor (2013)

Burrell v Hobby Lobby (2014)

5-4 decisions lack legitimacy of a unanimous verdict and undermine the court's authority since it appears that the justices are influenced by personal politics

6-3 Decisions are High Profile and Important

in most recent term 30% of cases were decided along 6-3 lines

eg Dobbs V Jackson overturning 50years of abortion rights for women

Approval Rating of the Supreme Court

1997 - 77%

2005 - 57%

2016 - 45%

Approval rating has decreased among the public since number of 5-4 decisions have increased and have become more politicised

Gideon v. Wainwright

1963: a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys.

how is the supreme court reshaping America?

Dobbs v Jackson: likely to be legal battles in states across the country for years to come

West Virginia V EPA(2022): effectively made it impossible for the US to pass meaningful green policy as EPA can't impose limits on carbon emissions without legislation from Congress authorising it to do

eg New York state Rifle and pistol association v Bruen (2022): overturned a new york gun regulation that required a permit to carry guns outside your home, so has effectively stripped states of the power to put significant limits on gun ownership

Korematsu v. US

1944 Supreme Court case in which the Supreme Court upheld the order providing for the relocation of Japanese Americans (order 9066). It was not until 1988 that Congress formally apologized and agreed to pay $20,000 to each survivor

civil liberties can be threatened in a time of war- the balance of power tips in favour of the president

how is the court a passive institution

the court must wait for cases to be brought to it by 'petitioners with standing'

justices can't be proactive and initiate a case themselves

eg in Bowers v Hardwick(1986) the supreme court ruled 5-4 that states could criminalise homosexual activity and they had to wait until 2003 in Lawrence v Texas to declare all state laws criminalising homosexual activity unconstitutional (had to wait 17 years for the case to be brought to them)

how does the principle of stare decisis guide decision making

previous judgements should stand unless there is an overriding reason to overturn them to create legal finality and certainty

justices are reluctant to abandon precedent as it admits a previous ruling was wrong

eg Roe v Wade stood for 49 years and there was a chance to overturn it in planned parenthood v Casey (1992) but they didn't

eg Roper v Simmons (2005) outlawed juvenile executions that had been allowed in Stanford v Kentucky (1989)

how does the institutional integrity of court depend on retaining respect of citizens and other political actors?

justices are aware that their democratic legitimacy is limited- unelected and largely unaccountable

legitimacy may be questioned if they stray too far from views of citizens

justices will see to behave in a largely non-partisan manner

eg Roberts has deliberately crafting judgements that he can unanimous/ nearly decisions on - half of all judgements issued by the court were 9-0 or 8-1 to try prevent image of a political institution

examples of the supreme court protecting rights?

Brown v Board of education (1954) to desegregate schools

Lawrence v Texas (2003) decriminalised homosexuality

Roe v Wade (1973) struck down state laws criminalising abortions

Obergefell v Hodges (2015) same-sex marriage legal across US

DC v Heller (2008) protected individual right to bear arms

court has a sustained attention to rights and has transformed them permanently

examples of supreme court not protecting rights?

court upheld state sanctioned and enforced racial segregation in Plessy v Ferguson (1896)

approved FDR's executive order 9066 for Japanese internment camps during ww2 in Korematsu v US

Bowers v Hardwick (1986) allowed state laws criminalising homosexual activity

comparative judiciaries

similarities and differences between supreme courts: history

The rationale behind the creation of the UK and US supreme courts was the same, although they were set up hundreds of years apart. Each was intended to provide an independent judiciary that was fully separate from the other two branches of government. The US Supreme Court was included in the Constitution as an integral part of the new republic, and sat for the first time in

1790. The UK Supreme Court is a very young institution. Prior to its creation, the UK Law Lords had sat in the Appellate Committee of the House of Lords and were not physically independent from parliament. The establishment of a new supreme court was part of a programme to modernise the judiciary and separate it from parliament.

similarities and differences between supreme courts: selection and appointment of justices

Although both systems involve detailed scrutiny of potential candidates, there is a fundamental difference in the way in which justices are selected in both countries:

US justices are political appointees who are nominated by the president and confirmed by the Senate.

UK justices are selected by an independent selection commission before being presented to the Lord Chancellor (a government minister) for approval.

The US appointment process is highly politicised, whereas the UK equivalent is independent and receives far less media attention. In fact, the position of UK Supreme Court justice is advertised and candidates apply as they would for any other job.

similarities and differences between supreme courts: characteristics of justices

UK justices must have been either a senior judge for at least 2 years, or a solicitor in one of the UK's highest courts, or a barrister, for 15 years. In the USA there are no official requirements to be a Supreme Court justice but modern appointees always have significant legal or judicial experience.

Women and ethnic minorities are underrepresented on both courts. The US Supreme Court has a higher proportion of women but has never had a female chief justice, whereas the UK Supreme Court had a female president.

Lady Hale, from 2017 to 2020. There are no justices from ethnic minorities on UK court but 2 on US court- overall US is more diverse ( more women and ethnic minorities in lower courts- main recruitment pool)

similarities and differences between supreme courts: tenure of justices

Tenure of justices

UK and US Supreme Court justices both enjoy security of tenure. They can only be removed during their term of office for wrongdoing, by impeachment in the USA or via the judicial complaints procedure in the UK. Security of tenure allows them to make judgements against the government without fear of repercussions. However, there is an important difference in the length of tenure. UK justices must retire by age 70 (unless they were appointed before

1995), whereas US justices have life tenure - they can choose to retire but many continue on well into their eighties. It can be difficult for justices to retire: octogenarian liberal justice Stephen Breyer would have been anxious to avoid vacating a seat on the Court while Trump was president, as Trump would have appointed a conservative replacement. On the other hand, the UK age limit has been criticised for forcing the unnecessary retirement of justices in their prime, such as Lady Hale.

similarities and differences between supreme courts: judicial approach

Some US justices, who are mainly conservative, practise judicial restraint. This is similar to the approach of UK justices, who usually follow precedent and defer to parliament. However, some US justices believe their role is to interpret the living constitution' in a modern context. This loose constructionist approach can lead to judicial activism, when justices make decisions to improve society. In the UK, justices have a much more limited interpretative role.

similarities and differences between supreme courts: impact on culture and society

During its long history, the US Supreme Court has made important judgements on public policy. Brown v Topeka (1954) led to the end of racial segregation in the American South. Roe v Wade (1973) legalised abortion and Obergefell v Hodges (2015) made same-sex marriage legal across the USA. The UK Supreme Court has not made judgements that have had a comparable impact on culture or society or politics.

similarities and differences between supreme courts: impact on executive and legislature

The Constitution is sovereign in the USA and provides a set of

'fundamental laws' for US justices to interpret when ruling on government action or laws passed by Congress. When they make politically controversial judgements of how the Constitution should be applied, they are often accused of legislating from the bench'. This does not occur in the UK, where the principle of parliamentary sovereignty gives the Supreme Court a narrower remit. In fact, two of the UK Supreme Court's most politically controversial judgements were a defence of parliamentary sovereignty against government action. First, in R Miller v Secretary of State for Exiting the European Union (2017), the Court found that the government could not trigger Article 50 (the mechanism for the UK to leave the EU) without approval from parliament. A couple of years later, in R Miller v the Prime Minister (2019), the Court ruled unanimously that Boris Johnson acted unlawfully by asking the Queen to prorogue parliament weeks before the UK was due to exit the EU. Prorogation ended the parliamentary session and prevented parliament from carrying out its constitutional function of scrutinising and debating the government's plans for Brexit. The Court ruled that parliament was no longer prorogued.

similarities and differences between supreme courts: impact on federalism and devolution

Both supreme courts have played an important role in defining the rights of the constituent parts of the two nations. In UK Withdrawal from the EU (Scotland Bill) (2018), the UK Supreme Court ruled that the Scottish Parliament had gone beyond its devolved powers by seeking to write its own laws for certain areas of EU law that were to be returned to the UK after Brexit. The Court ruled that the sovereignty of the UK Parliament meant that the Scottish Parliament could not exceed its powers granted in the Scotland Act 1998.

Differences and similarities in bases of powers

Article III of the US Constitution established the US Supreme Court The Supreme Court's powers come from the Constitution, with exception of judicial review of the legislature, which the Court awarded itself by striking down an Act of Congress in Marbury v Madison (1803). The UK Supreme Court was created by an Act of Parliament, the Constitutional Reform Act 2005. The UK Supreme Court's powers were given to it by parliament. The UK Court's power of judicial review is much more limited than that of the USA as it cannot rule Acts of Parliament unconstitutional.

As the UK does not have a codified constitution, the UK Supreme Court also reviews legal precedent and decides how it applies to new cases. UK justices defer to parliament's intentions when interpreting the law. In contrast, the US Supreme Court is concerned with the wording in a single document: the Constitution. This give the US Court a stronger basis for its power as it does not need to take the wishes of Congress into account.

Extent of powers: final court of appeal

The US and UK supreme courts are both final courts of appeal. The UK is a signatory to the European Convention on Human Rights (ECHR), which is separate to the EU.

People can seek justice for breaches of their human rights at the European Court of Human Rights (ECtHR) in Strasbourg.

The UK has added the ECHR to its Constitution as the Human Rights Act

1998. This allows individuals to bring human rights cases to UK courts.

However, they still have a right of appeal to the ECtHR, so this is one area of law in which the Supreme Court is not the final court of appeal.

Extent of powers: judicial review

Judicial review is an important check on the power of the government and used by both the US and UK supreme courts. Justices consider the legality of the government's actions and may find them unconstitutional in the USA, or rule them to be ultra vires in the UK. The US Supreme Court's power of judicial review is greater than that of the UK Court. In theory, a government with a majority in parliament could override the UK Supreme Court's ruling. Parliament can pass retrospective legislation to authorise actions which the Supreme Court has ruled ultra vires. UK governments generally comply with decisions made by the Court, as they wish to be seen to be respecting the rule of law. Indeed, if the government lacks sufficient support in parliament it will be forced to comply, as in the two Miller cases.

However, the government can choose to simply ignore the decision.

In the USA, Acts of Congress are also subject to judicial review, and can be struck down if the Supreme Court finds them to be unconstitutional. In the UK, parliament is sovereign so its laws cannot be struck down. Judicial review only applies to government actions, not to Acts of Parliament, so is a more limited power.

Extent of powers: protection of rights

The two supreme courts have an important difference in their ability to protect citizens rights. The US Supreme Court can strike down laws that infringe the Bill of Rights, whereas the UK Supreme Court can only identify a law as being incompatible with the Human Rights Act (HRA) 1998 and invite parliament to consider redrafting legislation. Crucially, parliament can ignore the UK

Supreme Court's 'declaration of incompatibility' if it wishes to.

Unlike the Bill of Rights in the USA, the HRA is not entrenched in the British Constitution, so parliament could pass a new law to modify it or scrap it completely. Similarly, parliament could withdraw the UK from the ECHR if it wanted to. This makes it possible for parliament to pass laws that infringe human rights, or for a majority government to pass retrospective legislation to legalise any breach of human rights. In the USA, rights are entrenched in the Constitution so cannot be removed except by a constitutional amendment

Extent of powers: constitutional interpretation

The US Supreme Court has a much greater role in interpreting the Constitution than the UK Court. Landmark cases effectively change the meaning of the Constitution by acting as 'interpretative amendments' that can only be reversed by a constitutional amendment or a subsequent decision by the Court. The UK Supreme Court cannot make sweeping interpretative changes to the Constitution, although it can clarify its meaning, as it did in both Miller cases with regard to the limitations of the government's royal prerogative power.

judicial independence

US and UK systems both encourage judicial independence, meaning that judges are free from any external pressure, improper influence or interference. This should allow them to make decisions based solely on the law, and to hold even the most powerful members of the government to account.

In both legal systems, tenure ensures that the position of justices is protected from government interference. The judiciaries are also structurally and physically independent from the other two branches of government. This independence allows the judiciaries to rule against the government as they see fit. For example:

United States v Texas (2016) struck down Barack Obama's executive order giving millions of illegal immigrants an indefinite delay in deportation.

R (on the application of The Public Law Project) v Lord Chancellor (2016) ruled that the Lord Chancellor was acting ultra vires by imposing a residence test for legal aid (state support with legal costs).

Politicised courts

(On flash cards)

Political or public pressure

(On flash cards)

Structural: role of political institutions

Structural similarities are crucial to judicial independence:

Security of tenure allows justices to make independent judgements.

Separation of powers gives the judiciaries independence from the other two branches of government.

Structural differences:

Entrenched 'fundamental laws in the US Constitution have produced a more powerful judiciary than in the UK. The US Court may use its interpretative powers for judicial activism if it wishes.

Parliamentary sovereignty limits the power of the UK Supreme Court, as it cannot override parliament. In contrast, the sovereignty of the US Constitution means that its Supreme Court can strike down laws passed by Congress.

Appointing US justices is a political process, which leads to more politicised and higher-profile US justices. UK justices are independently appointed and do not have an obvious 'conservative' or 'liberal' leaning.

Rational: role of individuals acting to advance their interests or personal preferences

Justices should take a rational approach to the law, analysing the merits of each case, and making a logical judgement. If the meaning of the law was Clear, then justices should reach unanimous judgements, which they do on both courts in a significant proportion of cases. However, the meaning of the law is often difficult to determine, so justices make an individual judgement based on their personal analysis. This can result in divided judgements, with justices writing strong opinions and dissents on both sides of the argument.

Individual justices make decisions based on their own legal preferences and philosophy. In the USA, the presence of strongly liberal and conservative justices means that judgements are frequently controversial and justices may be accused of judicial activism. UK justices generally follow a more restrained judicial approach.

The leaders of both countries have shown a willingness to reform the judiciaries to their own benefit. Trump appointed unprecedented numbers of appeal court judges, choosing more conservative candidates than previous Republican presidents. Johnson appointed an attorney general, Sulla Braverman, who had argued that parliament needed to 'take back control from the judiciary, which she felt was acting as a 'political decision-maker and "supplanting parliament'.

Cultural: role of shared ideas and culture

Both cultures prize the rule of law and judicial independence. This tradition dates back to Magna Carta (1215), which established the principle that no one can be imprisoned unlawfully. The new US republic inherited these values from its previous existence as 13 British colonies. Both countries pride themselves on representing the best of the Western liberal legal tradition, in which a strong judiciary holds the government to account and the rule of law applies.

In recent years, populism was on the rise in the form of Trumpism in the USA, and the UK electorate's decision to leave the EU and then give Johnson a majority general election victory in 2019. Populists paint themselves as the true representatives of the people, and have criticised the judiciary for supposedly thwarting the will of the people. The Daily Mail's Enemies of the People' headline suggested a cultural battle between overly liberal judges and the people. This politicises the judiciaries, and may diminish public respect for their decisions.

The US Supreme Court's definition of citizens rights via key landmark judgements has generated bitter cultural battles between liberals and religious groups over issues such as abortion and same-sex marriage. The UK Supreme Court has a lower public profile and its deference to parliament means that