supreme court

composition

• US:

  • US SC is made up of 9 justices who must be nominated by the president and confirmed by a Senate vote

  • US justice serve for life

• UK:

  • UK SC is made up of 12 justices recommended by the Judicial Appointments Commission and appointed by the Lord Chancellor

  • UK justices retire at 75

basis of powers

• US:

  • US SC’s main power is judicial review, which is the power to declare acts by the executive or Congress as unconstitutional

    • Judicial review is not a constitutional power but was granted by the court itself in the 1803 Marbury v Madison case

• UK:

  • UK SC is the final court of appeal on points of law of public significance, and interprets statute law to defend citizens’ rights

  • The UK SC makes rulings based on the principles of judicial review (ultra vires), natural justice, and precedent from past rulings

  • The UK SC uses the HRA (1998) to protect UK citizens’ rights

  • The ECHR is a Council of Europe treaty, not an EU institution; the UK remains a signatory following Brexit

powers of the SC

• US:

  • US SC rules on the Constitution’s meaning in its decisions

  • The US SC is the final court of appeal for federal and state cases

  • The US SC uses its judicial review power for rule laws and actions of the executive and legislatures as unconstitutional

• UK:

  • The UK SC interprets Parliament’s laws but cannot overrule Acts of Parliament

  • The UK SC rules on whether the actions of ministers are ultra vires

• SIMILAR POWERS:

  • The US and UK SC’s both have power over the executive

    • The US can use the power of judicial review to rule executive actions as unconstitutional

    • The UK SC can rule ministers actions as ultra vires, meaning they have acted beyond their legal authority

  • Neither courts have the ability to make legislation

judicial independence US

• US - EXTENT:

  • SC justices sit on the SC for life, which protects them from political pressure

    • Justices can only be removed from the SC by impeachment or conviction

    • Judicial independence enables the SC to check the power of the president and Congress, and rule against them

• US - LIMITS:

  • The appointment process is often politicised

    • The president will nominate judges whose political views and judicial philosophy are similar to their own

    • The senate often confirms appointments on party lines rather than the candidate’s suitability

  • There is political influence on SC cases from the executive

    • EX: 2012, Obama said it would be “unprecedented” if the SC overruled the Affordable Care Act ahead of the National Federation of Independent Business v. Sebelius case

judicial independence UK

• UK - EXTENT:

  • The principle of judicial neutrality means judges are politically neutral and don’t engage in politics

  • Judicial appointments are made by the monarch on the advice of the Lord Chancellor following recommendation from the Judicial Appointments Commission

  • Judges have security of tenure and cannot be removed due to their decisions, serving until statutory retirement age of 75

  • Courts follow the sub judice rule, limiting public commentary on ongoing cases

    • SC rulings are therefore protected from direct political interference

• UK - LIMITS:

  • Judges may comment on constitutional and legal principles in public lectures, but avoid political advocacy

  • Government ministers have occasionally criticised judicial decisions, raising debate about separation of powers

    • EX: 2013 - Theresa May criticised a SC ruling preventing deportation of foreign criminals

  • Judicial review can be politically sensitive, especially in cases involving government policy

    • However, the SC regularly rules against government decisions, showing institutional independence