Impact and Powers (AQA A-Level Politics): Revision Notes
Impact and Powers
Impact on government and politics
Both the UK and US supreme courts have made politically controversial rulings, including declaring government actions unlawful and ruling against laws passed by the legislature. However, the extent of their impact differs significantly.
The US Supreme Court has had a greater impact on government and politics because it possesses the power to interpret the Constitution and strike down laws passed by Congress or state legislatures. This means its decisions cannot be easily overturned by the political branches of government.
The UK Supreme Court, as a relatively new institution (established in 2005), is still defining its role. Its impact on government and politics is unlikely to ever match that of the US Court because parliament can ignore or overturn any controversial ruling it makes.
This fundamental difference stems from the principle of parliamentary sovereignty in the UK, which means parliament remains the supreme legal authority. Unlike the US Constitution, which acts as the supreme law of the land, the UK parliament retains ultimate power over all legal matters.
Impact on culture and society
Throughout its long history, the US Supreme Court has made landmark judgements that fundamentally shaped American society:
Landmark Social Change Cases:
- Brown v Topeka (1954) - Led to the end of racial segregation in the American South
- Roe v Wade (1973) - Legalised abortion nationwide
- Obergefell v Hodges (2015) - Made same-sex marriage legal across the USA
These decisions demonstrate the Court's ability to drive significant social change through constitutional interpretation.
In contrast, the UK Supreme Court has not made judgements that have had a comparable impact on culture, society or politics. This difference reflects the UK Court's more limited constitutional role and its inability to overturn Acts of Parliament.
Impact on the executive and the legislature
United States
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.
Fundamental laws are the basic laws that make up the constitution of a country. In the USA, these are superior to laws passed by Congress, which can be struck down if they conflict with the fundamental laws entrenched in the Constitution.
When the US Supreme Court makes politically controversial judgements about how the Constitution should be applied, critics often accuse justices of 'legislating from the bench' - meaning they believe the Court is making law rather than simply interpreting it.
United Kingdom
This situation does not occur in the UK, where the principle of parliamentary sovereignty gives the Supreme Court a narrower remit.
Two of the UK Supreme Court's most politically controversial judgements actually defended parliamentary sovereignty against government action:
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
- This ruling reinforced that major constitutional changes require parliamentary consent
R Miller v the Prime Minister (2019)
- The Court ruled unanimously that Boris Johnson acted unlawfully by asking the Queen to prorogue (suspend) parliament weeks before the UK was due to exit the EU
- Prorogation had ended the parliamentary session and prevented parliament from carrying out its constitutional function of scrutinising and debating the government's Brexit plans
- The Court ruled that parliament was no longer prorogued, effectively reversing the Prime Minister's action
Both cases demonstrate the UK Court's role in upholding parliamentary sovereignty rather than overriding it.
Impact on federalism and devolution
Both supreme courts have played important roles in defining the rights of the constituent parts of their respective nations, but with different outcomes.
United States
In the USA, landmark cases such as Brown v Topeka, Roe v Wade, and Obergefell v Hodges all extended the scope of federal law at the expense of states' rights, strengthening the power of the federal government.
This demonstrates how the Supreme Court has acted as a centralising force in American federalism, shifting power away from individual states toward the federal government.
United Kingdom
UK Withdrawal from the EU (Scotland Bill) (2018)
- The UK Supreme Court ruled that the Scottish Parliament had gone beyond its devolved powers
- The Scottish Parliament had sought 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
This case shows how the UK Court upholds the ultimate authority of Westminster over devolved institutions.
Bases and extent of powers
Bases of powers
The sources of authority for the two supreme courts differ fundamentally.
US Supreme Court
- Article III of the US Constitution established the US Supreme Court and gave it 'the judicial power of the United States'
- The Court's powers come from the Constitution itself
- There is one important exception: the power of judicial review of the legislature, which the Court awarded itself by striking down an Act of Congress in Marbury v Madison (1803)
Because its authority comes from the Constitution, the US Court does not need to take the wishes of Congress into account when interpreting the law. The US Supreme Court is concerned with the wording in a single document: the Constitution, which gives it a stronger basis for its power.
UK Supreme Court
- Created by an Act of Parliament - the Constitutional Reform Act 2005
- The UK Supreme Court's powers were therefore given to it by parliament, although the two institutions are separate and independent
- 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
The UK does not have a codified constitution, so the UK Supreme Court reviews:
- Legal precedent (previous law made by judges)
- Parts of the British Constitution that are written, such as the Human Rights Act 1998
- Constitutional conventions
- Common law (law that comes from precedent and tradition rather than parliamentary statute)
UK justices defer to parliament's intentions when interpreting the law, reflecting the principle of parliamentary sovereignty.
Extent of powers
Final courts of appeal
The US and UK supreme courts are both final courts of appeal for those seeking justice. However, there are two areas in which the UK Court has not acted as the final court of appeal.
European Union Law
- While the UK was part of the EU, and during the transition period following its withdrawal, EU law superseded UK law
- In cases relating to EU law, the European Court of Justice was the final court of appeal, not the UK Supreme Court
- When the UK left the EU, all EU legislation that applied to the UK was transferred into UK law
- This means that the UK parliament now has the final say on UK law, and the UK Supreme Court is the final court of appeal
European Convention on Human Rights (ECHR)
- The UK is a signatory to the ECHR, which is separate from the EU
- The ECHR was signed in 1950 and commits its 47 signatories to abide by its articles protecting human rights
- People can seek justice for breaches of their human rights at the European Court of Human Rights (ECtHR) in Strasbourg
- The UK added the ECHR to its Constitution as the Human Rights Act 1998, allowing 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
Exam tip: Be clear about the differences between the European Convention on Human Rights (ECHR), the Human Rights Act (HRA) 1998 and EU law. The ECHR is separate from the EU, so the UK continued to be a signatory to the ECHR after it left the EU. The HRA incorporated most ECHR law into UK law so that citizens could pursue human rights cases through the UK courts.
Judicial review
Judicial review is an important check on the power of the government and is 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
- Ultra vires (beyond the powers granted by parliament) in the UK
US Supreme Court - Greater Power
- Can strike down Acts of Congress if found to be unconstitutional
- The Court's judgement can only be overruled by a constitutional amendment, which is extremely difficult to achieve (requires two-thirds of both houses of Congress to propose it, and three-quarters of state legislatures to ratify it)
- The Constitution has only been amended 27 times in American history
UK Supreme Court - More Limited Power
- Can only review government actions, not Acts of Parliament
- Parliament is sovereign, so its laws cannot be struck down
- 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
Retrospective legislation is a law to legalise something that occurred before it was passed.
However, UK governments generally comply with decisions made by the Court, as they wish to be seen to be respecting the rule of law. If the government lacks sufficient support in parliament, it will be forced to comply, as happened in the two Miller cases. Nevertheless, the government could theoretically choose to simply ignore the decision.
Exam tip: Judicial review is a key concept for this exam paper, so you need to understand it thoroughly. Be aware that both supreme courts review their government's actions but that judicial review is more powerful in the USA, where the Supreme Court's ruling cannot be overridden or ignored and Acts of Congress are also subject to judicial review.
Protection of rights
The two supreme courts have a fundamental difference in their ability to protect citizens' rights.
US Supreme Court
- Can strike down laws that infringe the Bill of Rights
- Rights are entrenched in the Constitution, so they cannot be removed except by a constitutional amendment
- Rights can be reinterpreted by the Supreme Court through landmark decisions
UK Supreme Court
- Can only identify a law as being incompatible with the Human Rights Act (HRA) 1998
- Issues a 'declaration of incompatibility' and invites parliament to consider redrafting legislation
- Crucially, parliament can ignore the UK Supreme Court's declaration of incompatibility if it wishes to
The Human Rights Act 1998 incorporated the rights within the European Convention on Human Rights into UK law.
Unlike the Bill of Rights in the USA, the HRA is not entrenched in the British Constitution. This means:
- Parliament could pass a new law to modify it or scrap it completely
- Parliament could withdraw the UK from the ECHR if it wanted to
- It is possible for parliament to pass laws that infringe human rights
- A majority government could pass retrospective legislation to legalise any breach of human rights
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. For example, both Miller cases clarified the limitations of the government's royal prerogative power - the powers that the monarch (and by extension, the government) can exercise without parliamentary approval.
Remember!
Key Points to Remember:
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The US Supreme Court has greater impact and power than the UK Supreme Court because it can interpret the Constitution and strike down laws, whereas the UK Court is constrained by parliamentary sovereignty
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The US Court has driven major social change through landmark cases like Brown v Topeka, Roe v Wade, and Obergefell v Hodges, whilst the UK Court has not had comparable cultural impact
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The UK Court's most significant cases (the two Miller cases) defended parliamentary sovereignty against executive overreach
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Judicial review is more powerful in the USA - the Court's rulings cannot be overridden by Congress, whereas UK parliament can ignore or overturn Supreme Court decisions through new legislation
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The US Court derives its authority from the Constitution (via Article III and Marbury v Madison), whilst the UK Court was created by the Constitutional Reform Act 2005
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Rights protection differs fundamentally: the US Court can strike down laws that violate the Bill of Rights, whilst the UK Court can only issue a 'declaration of incompatibility' with the Human Rights Act, which parliament can ignore