Relative Independence (AQA A-Level Politics): Revision Notes
Relative Independence
Introduction
An independent judiciary is a cornerstone of the rule of law in both the USA and the UK. Both systems are designed to protect judicial independence, ensuring that judges can make decisions based solely on the law without external interference. This allows the judiciary to hold even the most powerful government officials to account.
However, the increasing politicisation of the judiciary in both countries has raised important questions about whether true independence can be maintained.
The concept of judicial independence is fundamental to democratic governance. Without it, governments could override legal principles to suit their political goals, undermining the rule of law itself.
Judicial independence
What is judicial independence?
Judicial independence means that judges are free from any external pressure, improper influence or interference when making decisions. This allows them to decide cases based solely on the law and legal principles.
It's important to distinguish this from judicial neutrality, which refers to judges' internal decision-making process. Neutrality means judges should not allow personal opinions or political beliefs to influence their judgements. Independence, by contrast, concerns freedom from external influences.
Key Distinction:
Independence = Freedom from external pressures (threats, political interference, public criticism)
Neutrality = Freedom from internal biases (personal opinions, political beliefs)
Both are essential, but they protect against different threats to impartial justice.
How independence is protected
Both the US and UK systems protect judicial independence through several key mechanisms.
Tenure ensures that judges' positions are secure and cannot be removed by the government. In the USA, Supreme Court justices serve for life (or until retirement). In the UK, Supreme Court justices serve until the mandatory retirement age of 70.
Structural and physical separation means the judiciaries are both organisationally and geographically separate from the executive and legislative branches. The UK Supreme Court moved to its own building in 2009, away from the House of Lords. The US Supreme Court has its own separate building in Washington DC.
These protections enable the judiciaries to rule against the government when necessary.
Examples of Ruling Against Government:
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United States v Texas (2016) struck down President Barack Obama's executive order that would have given millions of illegal immigrants an indefinite delay in deportation.
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R (on the application of The Public Law Project) v Lord Chancellor (2016) ruled that the Lord Chancellor was acting ultra vires (beyond his legal powers) by imposing a residence test for legal aid eligibility.
These cases demonstrate how structural protections allow courts to check government power effectively.
Judicial politicisation
What is politicisation?
Politicisation describes a situation in which judges are drawn into politics, compromising their neutrality as guardians of the law. This can occur when judges make controversial rulings that attract criticism from politicians or the media, or when they are perceived to be motivated by political beliefs rather than strict legal interpretation.
Politicisation threatens judicial independence by potentially influencing how judges make decisions.
Politicised courts
The US Supreme Court is often described as having a political leaning, either 'liberal' or 'conservative', based on the justices appointed by different presidents. Republican presidents typically appoint conservative justices, whilst Democratic presidents appoint liberal ones. This means a Republican president may face fewer challenges from a conservative-majority court than from a liberal-majority court.
In contrast, UK Supreme Court justices are not publicly associated with political leanings. They interpret the law on a narrower constitutional basis, and their personal political views are not a focus of public discussion in the same way.
Bush v Gore: a controversial case
Perhaps the most politically controversial decision in US Supreme Court history was Bush v Gore (2000). The conservative-majority Court ruled 5-4 against an election recount in Florida, effectively making George W. Bush president. This decision attracted widespread criticism that the Court lacked the necessary independence to rule impartially on such a politically charged case.
Bush v Gore (2000) remains the most controversial Supreme Court decision in modern history because:
- The Court split along ideological lines (5-4)
- The decision effectively determined the outcome of a presidential election
- Critics argued the conservative justices acted on political preference rather than legal principle
- It raised fundamental questions about whether an ideologically divided court can act independently on highly political matters
Evidence of judicial independence in the USA
Despite the political nature of appointments, several pieces of evidence suggest that US justices can and do act independently:
Tenure prevents presidential influence. Once appointed, justices cannot be influenced by the president, as they have lifetime tenure and cannot be removed.
Justices rule against their appointing presidents. Associate Justices Neil Gorsuch and Brett Kavanaugh, both appointed by Donald Trump, ruled against him in Trump v Vance (2020), which concerned Trump's tax records.
Republican appointees sometimes take liberal positions. Two of the dissenting justices in Bush v Gore were Republican appointees who became part of the liberal wing of the Court.
Unanimous rulings are common. The Court doesn't always split along ideological lines. The 6-3 conservative majority Court unanimously declined to hear Trump's challenge to the 2020 election results, even though three of the justices were his appointees.
These examples challenge the assumption that political appointments automatically lead to partisan decision-making. While justices may be appointed for their ideological views, the security of lifetime tenure appears to enable them to rule based on legal principles rather than political loyalty.
Trump's reshaping of the judiciary
Despite these examples of independence, President Trump significantly reshaped the composition of federal appeals courts during his presidency. Senate Republicans blocked President Obama's judicial nominations at the end of his presidency, leaving approximately 100 seats vacant when Trump took office.
By the end of his single term, Trump had appointed 54 appeals court judges – only two fewer than Obama appointed during his entire eight-year presidency. Trump deliberately selected young justices with an average age of 50 to ensure a long-term legacy of conservative judges on the bench.
Whilst these justices may act independently once appointed, there are concerns they may not be completely neutral in their rulings given their ideological selection.
Political or public pressure
A second threat to judicial independence comes from political or public pressure. If judges make certain rulings to avoid negative publicity or criticism from key politicians, they are not acting independently.
The rise of hostile criticism
Recent years have seen an increase in hostile criticism of the judiciary, partly driven by social media. In 2017, the UK's Lord Chief Justice stated that social media 'abuse' put judges under 'intolerable pressure'.
President Trump used Twitter extensively to criticise judges and courts:
- He referred to 'so-called judges' and 'slow and political courts' in 2017
- He condemned the court system as 'broken and unfair' in 2018
- He described Trump v Vance (2020) as 'a political prosecution', comparing it to a 'witch hunt'
Trump was not the first US president to criticise the judiciary publicly – Obama had criticised the Supreme Court's Citizens United v Federal Election Commission (2010) ruling, which established that corporations and unions had the same rights to free speech as individuals in relation to campaign finance. However, Trump's sustained criticism was unprecedented in its intensity and frequency.
Politicisation of the UK judiciary
The UK judiciary has also faced increasing political criticism during the lifetime of the UK Supreme Court. Initially, criticism focused on the Court's interpretation of the Human Rights Act (HRA). In 2013, then Home Secretary Theresa May accused judges of 'ignoring' deportation law by making it more difficult to deport foreign criminals.
Brexit and 'Enemies of the People'. The Brexit debate led to the judiciary becoming much more politicised. In 2016, the Daily Mail used a front-page headline condemning High Court judges as 'Enemies of the People' after they ruled that the government could not trigger Article 50 to leave the EU without Parliament's consent.
The 'Enemies of the People' Headline
This incident marked a significant escalation in public attacks on the UK judiciary. The headline was widely condemned by legal professionals and politicians across the political spectrum as an attack on judicial independence. It demonstrated how politically charged issues like Brexit could lead to unprecedented criticism of judges simply for applying the law.
The second Miller case. The Court's decision in R (Miller) v the Prime Minister (2019), which ruled that Boris Johnson's prorogation of Parliament was unlawful, led to public criticism from the Prime Minister himself. Johnson suggested he was considering reforming the judiciary, possibly introducing a US-style system of political appointments, stating: 'I think, if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability…The lessons of America are relevant.'
Judicial resilience
Despite this pressure, there is evidence that both judiciaries have maintained their independence.
Lady Hale's response. The outgoing President of the UK Supreme Court, Lady Hale, firmly rejected suggestions of US-style reforms, stating: 'We do not want to turn into the Supreme Court of the United States, whether in powers or in process of appointments…there is no member of the judiciary…who would favour the politicisation of judicial appointments.'
She also rejected the idea that justices are swayed by public criticism: 'We have to continue to do the job according to our judicial oaths…we certainly do not pay any attention to attacks of that nature.'
The US Supreme Court's response to Trump. The US Supreme Court demonstrated its resilience by unanimously declining to hear Trump's challenge to the 2020 election results, despite three of the justices being his appointees. Trump expressed his frustration by tweeting: 'The Supreme Court really let us down. No wisdom! No courage!'
Judicial Resilience in Action
Both Lady Hale's defiant response and the US Supreme Court's unanimous rejection of Trump's election challenge demonstrate that, despite increasing political pressure, the judiciaries in both countries have maintained their commitment to deciding cases based on law rather than political considerations. This resilience suggests that structural protections like tenure remain effective safeguards of independence.
Exam guidance
When answering questions about judicial independence, remember to:
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Distinguish between independence and neutrality – these are related but different concepts
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Use specific case examples to illustrate your points (e.g. Bush v Gore, Miller cases, Trump v Vance)
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Consider both threats and evidence of resilience – don't just focus on politicisation; also examine how courts have resisted pressure
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Compare structural factors in the US and UK systems to explain differences in how independence operates
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Include recent developments such as Trump's judicial appointments and Brexit-related criticism of UK judges
Consider both sides of the argument about whether political appointments necessarily compromise independence. Whilst the US system creates ideological courts, there is evidence that justices often act independently once appointed.
Remember!
Key Points to Remember:
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Judicial independence means judges are free from external pressure; judicial neutrality means they decide based on law, not personal opinions
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Both systems protect independence through tenure and separation of powers
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The US Supreme Court is more politicised due to the political appointment process and ideological labelling of justices as 'liberal' or 'conservative'
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Bush v Gore (2000) remains the most controversial US Supreme Court decision, effectively deciding a presidential election
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Despite political appointments, US justices often demonstrate independence by ruling against their appointing presidents
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Both judiciaries face increasing political and public pressure, including social media criticism and attacks from politicians
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The Brexit debate significantly increased politicisation of the UK judiciary, exemplified by the Daily Mail's 'Enemies of the People' headline
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Both courts have shown resilience by continuing to rule against government despite criticism
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Structural differences explain variations in judicial power: the US Constitution's entrenchment creates a more powerful court than the UK's parliamentary sovereignty allows