US Judiciary + UK/US Comparison

The Judicial Branch of Government Overview: The Supreme Court is the highest court in the US The SC is the final court of appeal for anyone seeking justice The Supreme Court interprets the Constitution The SC has 9 justices (an odd number so decisions aren’t tied) There is one chief justice (John Roberts) and 8 associate justices Justices are appointed by the President and confirmed by the Senate Justices hold office for life unless they retire or are impeached The SC only hears cases of constitutional importance Cases are appealed from US District Courts to US Courts of Appeals and then to the SC The SC’s power of judicial review allows it to rule on Acts of Congress, state laws, federal or state executive actions and decide whether they are constitutional or not The Process of Selection and Appointment of Supreme Court Judges: A vacancy opens as the result of a death, retirement or impeachment of a justice President considers possible nominees (Most nominees com from federal Courts of Appeals) (President must be confident that his candidate will attract support) Candidates are shortlisted and background checked A final few are interviewed by the President The President’s choice is formally announced The nominee appears before the Senate Judiciary Committee to assess their suitability Senate Judiciary Committee votes on the nominee Senate debates and votes on the nominee (simple majority needed for confirmation) Strengths Weaknesses Detailed scrutiny of every nominee by the White House, the FBI, the Senate Judiciary Committee and the media Many opportunities for unsuitable candidates to be removed from the process The Senate Judiciary Committee scrutinises the candidates in detail Senate confirmation provides a check on the power of the President Attempts by Presidents to pick justices who share their political philosophy are not always successful Presidents usually try to choose nominees who support their own political philosophy The Senate Judiciary Committee can be politicised Questioning from the President’s party is usually softer Voting by the Senate usually takes place on party lines The politicisation of the process is increased by pressure group campaigns Media interest in nominees may focus on personal life and politics more than legal experience Republican senators’ refusal to consider Merrick Garland in 2016 was a violation of the President’s right to appoint a justice to the Court Current Composition of the Supreme Court: Justice Date Appointed President Appointing Chief Justice John Roberts 2005 George W. Bush (R) Associate Justices Clarence Thomas 1991 George H.W. Bush (R) Samuel Alito 2006 George W. Bush (R) Sonia Sotomayor 2009 Barack Obama (D) Elena Kagan 2010 Barack Obama (D) Neil Gorsuch 2017 Donald Trump (R) Brett Kavanaugh 2018 Donald Trump (R) Amy Coney Barrett 2020 Donald Trump (R) Kentaji Brown Jackson 2022 Joe Biden (D) Roberts, Thomas, Alito, Gorsuch, Kavanaugh and Barrett are seen as conservative Sotomayor, Kagan and Jackson are seen as liberal The court has a solid conservative majority Only 3 black Americans have ever sat on the SC: Thurgood Marshall 1967-1991 Clarence Thomas 1991- Present , Kentaji Brown Jackson 2022-Present Only 6 women have sat on the SC: 1st was Sandra Day O’Connor in 1981, most famous was Ruth Bader Ginsburg The Court can hear cases with fewer than 9 membersIf an even number of justices reach a tied judgement then the lower court’s decision stands The Nature of Judicial Power: The SC has the power of judicial review The SC can rule the actions of the executive branch to be unconstitutional The SC can then overturn laws if it finds them unconstitutional The Supreme Court as the Guardian of the Constitution: The Court makes its judgement based on its interpretations of what the Constitution means SC justices have very different ideas and opinions about how the Constitution should be interpreted Strict Constructionists = Believe the original text of the Constitution should be as closely followed as possible. Usually associated with originalists and follow the original meaning of the text according to the Founding Fathers. Thomas, Gorsuch, Kavanaugh and Barrett are originalists Loose Constructionists = Believe the Constitution should be interpreted more loosely and take into account the intentions of the framers and the modern context. Many believe the Constitution is a ‘living constitution’ Strict constructionists are usually appointed by Republican presidents Loose Constructionists are usually appointed by Democrat presidents The Supreme Court as a Protector of Citizen’s Rights: The SC protects civil rights and liberties The Bill of Rights is interpreted and protected by the SC First Amendment (Freedom of Religion) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof The SC strikes a balance between avoiding an established religion and allowing citizens to practise their religion freely The trend recently seems to be allowing individuals more freedom to practise their religion Burwell v Hobby Lobby Stores Inc (2014): Struck down part of the Affordable Care Act 2010 because it made family-run businesses contribute to worker health insurance that could fund contraception, possibly against religion First Amendment (Freedom of Speech) Congress shall make no law … abridging the freedom of speech, or the press Political donations are protected by the SC as they are seen as an expression of freedom of speech Citizens United v Federal Election Commission (2010): The SC ruled that corporations, unions and associations had the same rights to free speech as individuals and could make political donations and political adverts Second Amendment (Gun Control) A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed Liberals interpret the amendment as a collective right to bear arms in a militia eg. an army Conservatives interpret it as an individual's right to bear arms District of Columbia v Heller (2008): SC confirmed that the amendment does allow the individual right to bear arms. Eighth Amendment (Death Penalty) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted Death penalty is legal in 27 states SC rulings have focused on interpreting what are ‘cruel and unusual’ punishments Baze v Rees (2008): The SC ruled that lethal injection was not a ‘cruel and unusual punishment’ Significance of Judicial Review: Judicial review allows the SC to ensure that the legislature and the executive do not exceed their constitutional powers Judicial review allows the SC to strike down laws passed by legislatures The SC can also rule against the actions of the government Judicial review can be used as a check on presidential power eg. United States v Texas (2016) struck down Obama’s executive order on delaying deportation of 5 million illegal immigrants Judicial review ensures that the civil rights and liberties of citizens’ are not infringed upon It gives 9 unelected justices enormous power over elected federal and state legislatures and executives Debates About the Political Significance of the Supreme Court: The SC has been often criticised for making political decisions Decisions like Roe v Wade (1973) have the same effect as passing new legislation on issues Critics have argued that the SC has moved from interpreting law to making it Strict constructionists argue that the Founding Fathers had no intention of authorising abortion, so claim these rulings are a form of judicial activism (‘legislating from the bench’) Is the Supreme Court too Political?: Yes No It is an unelected body that makes decisions on controversial issues Justices are appointed by the President and confirmed by the Senate Most justices reflect the politics of the President who appointed them Justices tend to make either conservative or liberal judgements Justices can engage in judicial activism Loose constructionist interpretations has led to criticisms of the SC acting as the ‘third house of the legislature’ Judgments can only be reversed by a constitutional amendment Bush v Gore (2000) SC ruled against a recount in Florida, which decided the result of the election in favour of Bush Rucho v Common Cause (2019) Court rule 5-4 that partisan gerrymandering was not unconstitutional Justices are independent and supposed to be neutral eg. Gorsuch ruled against Trump in Trump v Vance (2020) Decisions are made on the basis of legal judgement rather than political principles A significant amount of the SC’s rulings are unanimous Some justices do not reflect the political stance of the President who appointed them Some justices do not consistently vote the same way Many justices practise judicial restraint The SC must apply modern areas of public policy, if it is going to continue to be relevant Congress acts as a check on the power of the SC Bostock v Clayton County (2020) Conservative majority court ruled 6-3 that employees had a right not to be discriminated against for being LGBTQ Examples of Landmark Rulings and Related Debates and Controversies: Case Details Significance Brown v Board of Education of Topeka (1954) Black parents from Topeka, Kansas brought the lawsuit after their children were denied access to the local all-white school and had to travel miles to the all-black school Supported by the NAACP and Thurgood Marshall The SC ruled in favour of the parents SC found the ‘separate but equal’ was fundamentally unequal and in breach of the 14th Amendment Struck down the ‘separate but equal’ doctrine established in Plessy v Ferguson (1896) Chief Justice Earl Warren stated that even if ‘tangible’ aspects of education were equal, the result of segregation created a feeling of inferiority Follow up judgement in 1955, ordered local school authorities to integrate public schools Decision ended legal segregation in schools Huge win for the civil rights movement Was seen as an attack on states’ rights by the SC in the South Led to the Little Rock 9 confrontation in 1957 Can be seen as the product of an activist court Obergefell v Hodges (2015) Focused on the ‘equal protection’ clause of the 14th Amendment James Obergefell argued that in refusing his same-sex marriage from Maryland, the state of Ohio was in breach of the 14th Amendment SC ruled 5-4 in favour that the right to marry was a fundamental right Legalised same-sex marriage across the USA Majority of justices took a loose constructionist approach To the strict constructionists it was an example of judicial activism Many Christian groups argued it went against their right to religious freedom Significant change was made to US law Significance of the Judiciary in Shaping One Area of Public Policy | Abortion: Details Significance Roe v Wade (1973) Using the name Jane Roe, a woman challenged the right of Texas law to prevent her from having an abortion SC ruled 7-2 that woman have the right to an abortion in the early stages of pregnancy Ruled as part of the right to privacy protected under the 14th Amendment Landmark case for women’s movement Asserted women’s right to personal choice over their bodies Abortion became a political issue: Democrats ‘pro life’ and Republicans ‘pro choice’ Conservatives criticised the SC for judicial activism Some argued a law passed by Congress would have provided a democratic mandate for abortion rights Planned Parenthood v Casey (1992) SC upheld the right of states to regulate abortion Only if the regulation was not an ‘undue burden’ on a woman seeking an abortion SC’s conservative majority led conservatives to hope Roe v Wade would be overturned SC applied stare decisis by protecting the right to an abortion defined by Roe v Wade States had increased power to regulate abortion Gonzales v Carhart (2007) Partial Birth Abortion Ban Act (2003) was passed by Congress and signed into law by President George W. Bush Act was ruled unconstitutional in lower federal courts SC ruled 5-4 in favour of the Act Partial birth abortions in later pregnancy remained illegal (as intended by Congress) SC allowed Congress to ban this type of abortion even if the woman’s health was affected Ginsburg was the only woman on the SC and opposed the decision 5 justices in the majority were all Catholic Religious and conservative pressure groups switched to a strategy of scrapping abortion through legislation rather than overturning Roe v Wade Whole Woman’s Health v Hellerstedt (2016) SC ruled 5-3 that restrictions placed on abortion clinics in Texas by Texas state law were unconstitutional Setback for conservatives Associate Justice Anthony kennedy provided the crucial swing vote Abortion Rights 2018 Onwards Under a Conservative Court: Trump tried to overturn Roe v Wade by appointing pro-life justices Many state legislatures passed laws restricting abortion, knew they would be ruled unconstitutional but planned to appeal in SC in hope it would overturn Roe Medical Services v Russo (2020): SC ruled 5-4 that abortion restrictions were unconstitutional Amy Coney Barrett’s appointment in 2020 gave the SC a 6-3 conservative majority Roe v Wade was overturned in June 2022 Comparing the US and UK Judiciaries Similarities and Differences Between the Supreme Courts: Similarities Differences History Both SC’s were designed to provide an independent judiciary Separate from other 2 branches of government US SC was included in the original Constitution and first met in 1790 UK SC was created in 2009 Prior to 2009 the Law Lords sat in the Appellate Committee of the HOL Selection and Appointment of Justices Both involved detailed scrutiny of potential candidates US justices are nominated by the President and confirmed by the Senate Highly politicised process UK justices are chosen by an independent selection commission and then presented to the Lord Chancellor for approval UK process receives a lot less media attention No official requirements to be a US SC justice UK SC justices must have been a senior judge for at least 2 years or a senior courts lawyer for 15 years Characteristics of Justices Justices in UK and US are experienced law professionals Women and ethnic minorities have been under-represented on both courts Higher proportion of women on US SC No ethnic minorities on the UK SC (3 in the US) Tenure of Justices Both UK and US SC justices enjoy security of tenure UK justices must retire by 70 US justices have life tenure (unless they retire or are impeached) Judicial Approach Some justices in the US practise judicial restraint, which is commonly used in the UK The interpretative role of judges is more limited in the UK The idea of a living constitution does not exist in the UK Impact on Government and Politics: Similarities Differences Both have made controversial rulings declaring the government’s actions unlawful Both have ruled against laws passed by the legislature Federalism and devolution have both been affected by the Court’s rulings US SC has a bigger impact as it can strike down laws UK Parliament is sovereign and has the final say on legislation US SC’s judgement can only be overruled by a constitutional amendment UK SC’s impact is less because the government can ask Parliament to pass retrospective legislation US SC has made judgements on public policy which have has a dramatic impact eg. Brown v Board UK SC has not made judgements as big as the US The UK SC is still very young Extent and Bases of Power: Similarities Between the Two Supreme Courts Differences Between the Two Supreme Courts Bases of Power N/A US SC gains its authority from Article III of the Constitution UK SC was created by an Act of Parliament UK SC’s powers were given by Parliament US SC developed judicial review by its own accord US SC is solely concerned with interpreting the Constitution UK SC does not have a codified constitution to considered so it must consider the HRA, conventions and common law Extent of Powers Both are final courts of appeal (other than ECthR for human rights) Both courts can use judicial review to consider actions of the government Both courts can rule against the actions of the government Parliament is sovereign in the UK, so courts can’t strike down laws US courts can strike down an Act of Congress US SC can rule against laws or government actions that go against the Bill of Rights UK SC can only identify a law or action as being incompatible with the ECHR Parliament can ignore the UK SC’s declaration of incompatibility US SC’s verdicts can only be overruled by a constitutional amendment or a new SC ruling US SC has a greater interpretative role UK SC can only clarify the meaning of the Constitution UK governments can use their control of Parliament to pass retrospective legislation Relative Independence of the US and UK Judiciaries: High Degree of Judicial Independence: Justices are protected from government interference as they have security of tenure (US for life and UK till 70) Both SC’s are structurally and physically independent from the other branches of government Both judiciaries have made judgements against the ruling government (eg, UK R Miller 2017 & 2019, US against Trump’s false election claim) UK judges are independently appointed and do not have clear political leanings US judges may vote against the politics of the politicians who appointed them Large proportion of unanimous judgements in the US SC suggest their rulings are not purely based on their political stance Concerns of Politicisation: US SC consists of political appointees (either conservative or liberal) Both have made controversial political rulings (US Bush v Gore 2000, UK SC’s need for parliamentary consent on leaving the EU) Polarisation in the US and the emergence of deep Brexit divisions in the UK has led to the increase of criticism of both judiciaries Politicians in both countries occasionally publicly criticise their judiciaries (eg. Trump) Criticism by politicians could affect judicial independence US system of judicial appointments gives the president the ability to pack the courts with justices who share their political views Theoretical Approaches to the Judiciaries: Aspects to Analyse Structural (Role of Political Institutions) A codified and entrenched US Constitution results in a more powerful judiciary than the UK Parliamentary sovereignty in the UK results in a less powerful SC Similarities in tenure allow judicial independence US presidential judicial nominations lead to US justices being chosen for their politics UK justices are independently appointed Rational (Role of Individuals) Individual difference between justices, their voting preferences and their degree of politicisation Judicial activist justices are present in the US SC Politicians have a role in criticising the judiciary and attempting to influence it Cultural (The Role of Shared Ideas and Culture) Both courts exist in cultures that value the rule of law and judicial independence Competing cultures of judicial restraint and judicial activism in the US judiciary, competing with conservative and liberal approaches (not seen in the UK) US SC’s decisions contribute to the nations culture war between conservatives and liberals Populists in both countries have suggested that the judiciary is going against the will of the people