Comparing the US and UK judiciary

What are the similarities in court powers?

• Both courts gave the power of judicial review which can have a profound impact on public policy and executive power

• Judicial review decisions are increasing feature in the political landscape

• Miller v Secretary of State in 2017 - govt was defeated in court over then PM May using prerogative powers to trigger leaving the EU - the court restricted executive power

• Obama was defeated on his recess appointments in NLRB v Canning in 2014, he accepted that he couldn’t continue with his appointments - restricted executive powers

What are the differences in court powers?

• In the USA, the constitution is sovereign and as its the judiciary’s role to protect it and the way they interpret it can make huge impacts on the political system. Thus the judiciary’s ruling is difficult to ignore/overturn. Marbury v Madison gives them strike out powers which usually requires a constitutional amendment.

• In the UK, Parliament is sovereign, so the UK’s SC’s power are reduced to declarations of incompatibility with the HRA and ultra vires but they cannot strike out primary legislation. The courts can easily be overturned by a new act of Parliament.

• In the USA, judicial review is a much more established power established in the system while the UK judicial review has been used for the last 40 years.

• In the USA, the appointment process is much more political as the President nominates justices based on political ideology. In the UK, justices are not labelled and are appointed by an independent body.

What are the similarities in the independence of the courts?

• Both courts have security of tenure meaning that it is very difficult for them to remove judges. In the UK, a petition of both houses is required whilst in the USA its through impeachment with a 2/3 majority in the Senate model. In the UK the appointment process is done independently.

• Both have separate buildings, personnel and powers - allowing them to cast decisions without interference. Salaries are set independently in both systems too (culture of independence).

What are the differences in the independence of the courts?

• In the US, the appointment process is more politicised as justices are linked to ideology

  and this impacts the outcome of decisions whilst in the UK there is no ideology labels

• In the UK, the separation if powers is not entirely complete. The Constitutional Reform Act 2005 did establish some sort of physical separation but the Lord Chancellor’s role is somewhat unclear (Secretary of State). In the USA, the branches are completely separate and no one can be a part of the judiciary and the other branches at the same time

What are the similarities in protection of rights?

Both courts protect rights and there is a culture and respect for rights by society and elected politicians; the principle of the rule of law respected in both countries by politicians.

What are the differences in the protection of rights?

• The US Supreme Court has a wider ability to protect rights. With the Bill of Rights and subsequent amendments they can strike out congressional laws and presidential acts. Their ruling have the effect of being sovereign and thus are very powerful and thus is more effective than the UK.

• The UK Supreme Court can be overruled by Parliament since its sovereign. The lack of a codified constitution of the UK means rights aren’t entrenched and thus Parliament can repeal legislation such as the HRA

• Judicial review in the US has stronger consequences as they can strike out laws to protect guaranteed by the constitution. In the UK this is different.

Structural explanation:

• Constitutional framework determines the power of the courts and thus the extent that they can protect rights and impact wider policy

• Separation of powers and impact

• Entrenchment due to codification