Differences-Powers of the US UK SC

Topic 1

Constitutional supremacy vs parliamentary sovereignty 

US 1

The US SC operates under the principle of constitutional supremacy, allowing it to strike down any federal or state laws that violate the constitution.

The authority of supreme court over state statutes derives from Fletcher v. Peck (1810), a landmark Supreme Court case which established the Court's authority to strike down state laws as unconstitutional. 

Example:  

2022 decision in Dobbs v Jackson overturning constitutional protection of abortion access established via Roe v Wade 1973 and planned parenthood v Casey 1992, previous federal abortion protections, returning regulatory authority to states

UK 1

In contrast, the UK SC functions within a system of parliamentary sovereignty, and cannot overturn Acts of Parliament, and can only signify acts of incompatibility.

Rwanda Bill 2024

Supreme Court ruling that declared the Rwanda policy unlawful due to risks of "refoulement", was effectively ignored by the parliament through passage of Safety of Rwanda Bill which declared Rwanda as a “Safe country”, demonstrating power of parliamentary sovereignty over the authority of UK supreme court.

Difference 1

This difference illustrates that the US SC can nullify federal laws whilst the UK SC cannot override primary legislation passed by parliament.  

cultural analysis 

cultural analysis, as the founding fathers of the constitution in the US created “codified” constitution to prevent tyrannical governance post-civil war, whilst never having faced such revolutions, UK uses “uncodified” constitution and evolved powers of SC over time, leading to different authority of each court

Topic 2

Judicial independence

Role of politics in the appointment process  

Political appointment process (US) vs commission led merit based appointment (UK)

US 2

In US, SC appointments are highly politicised as justices are nominated by the President and confirmed by the Senate, both of which are political bodies.  

Example:  
The appointments of Justice Kavanaugh 2020, Barrett (2020) and Jackson (2022) were seen as part of a broader political strategy to shift the court’s ideological balance, with contested partisan battles in Senate

UK 2

UK SC justices are appointed by an independent judicial appointments commission, reducing political influence and focusing on merit, with appointments like that of Lord Reed 2012 under standard merit process reflecting a commitment to judicial independence.  

Difference 2

Structural theory- 

Examining how political involvement in the US appointment process contrasts with the merit-based independent UK system 

US SC appointments are often politically driven

UK appointments are largely merit-based and less subject to political intervention, and limited ministerial input  

Topic 3

Effectiveness of rights protection

Strength of judicial review over legislation

Outright striking down of legislation (US) vs declarations that leave the final word with parliament (UK)

US 3

US SC can strike down federal or state law violating constitutional rights: students for fair admissions v Harvard (2023) ended race conscious admissions with SC ruling that affirmative action in college admission is unconstitutional, violated title VI of the civil rights act of 1964.

UK 3

UK SC can’t invalidate acts of parliament but can issue declaration of incompatibility under section 4 HRA, as seen with R v SSHD 2023 on illegal migration act 2023 declaration of incompatibility with ECHR citing potential for refoulement sending asylum seekers to Rwanda

leaving parliament free to act on them or ignore them, with passage of Safety of Rwanda act 2024 overriding judicial decision and allowing gov to continue with the policy

Difference 3

structural theory applies because how strongly each SC can review legislation is set by its constitutional design.

US SC can strike down federal or state law that violate constitutional rights

UK SC can only issue declaration of incompatibility under section 4 HRA, leaving parliament free to act on them or ignore them