The Supreme Courts (AQA A-Level Politics): Revision Notes
The Supreme Courts
History
Both the UK and US supreme courts were created with the same goal: to establish an independent judiciary that operates separately from the other two branches of government. However, they were founded centuries apart.
The US Supreme Court was established as part of the original Constitution and first convened in 1790. It was designed as an integral component of the new American republic, reflecting the founders' commitment to the separation of powers.
In contrast, the UK Supreme Court is relatively new, having been established only in 2009. Before this, the UK's highest judges (known as Law Lords) sat in the Appellate Committee of the House of Lords, meaning they were not physically separate from parliament. The creation of a distinct Supreme Court was part of a broader modernisation programme aimed at properly separating the judiciary from parliament.
Key Historical Difference
The US Court has over 200 years of history and established precedent, whilst the UK Court is still defining its role within the British constitutional system. This timing difference significantly impacts their respective development and influence.
Selection and appointment of justices
Although both countries carefully scrutinise potential candidates, there is a fundamental difference in how justices are selected.
United States
US justices are political appointees. The process works as follows:
- The president nominates a candidate
- The Senate confirms (or rejects) the nomination through hearings and a vote
- The process is highly politicised and receives extensive media coverage
- Presidents typically nominate justices who share their political ideology
United Kingdom
UK justices are selected through an independent process:
- The position is advertised publicly, and candidates apply as they would for any job
- An independent selection commission assesses applications and recommends one candidate
- The Lord Chancellor (a government minister) receives the recommendation
- The Lord Chancellor can reject the name once with good reason, or ask for reconsideration once, but must then confirm the appointment
- The prime minister formally recommends the approved candidate to the monarch
- The process receives far less media attention and is deliberately non-political
A Critical Constitutional Difference
US appointments are overtly political, whilst UK appointments aim to be merit-based and independent of political influence. This fundamental difference shapes the entire character and operation of each court.
Characteristics of justices
Qualifications and experience
UK requirements are formally specified. Candidates must have been:
- A senior judge for at least 2 years, or
- A solicitor in one of the UK's highest courts for 15 years, or
- A barrister for 15 years
US requirements are not formally specified in the Constitution. However, in modern times, all appointees have significant legal or judicial experience, typically having served as federal judges or held senior legal positions.
Diversity and representation
Both courts struggle with underrepresentation of women and ethnic minorities, though the US Court performs slightly better overall.
Women:
- The US Supreme Court has a higher proportion of female justices
- However, the US has never had a female Chief Justice
- The UK had its first female president (Lady Hale) from 2017 to 2020
Ethnic minorities:
- The UK Court currently has no justices from ethnic minority backgrounds
- The US Court has two justices from ethnic minorities
Understanding the Diversity Gap
The US Court's greater diversity partly reflects the higher proportion of women and ethnic minorities in lower US courts, which serve as the main recruitment pool for Supreme Court justices. The pipeline of diverse candidates affects representation at the highest level.
Tenure of justices
Both courts provide justices with security of tenure, meaning they cannot be easily removed from office. This protection allows justices to make decisions against the government without fear of repercussions.
Removal procedures
Justices can only be removed for wrongdoing:
- USA: through the impeachment process
- UK: through the judicial complaints procedure
Length of tenure
This is where a crucial difference exists.
United States:
- Justices enjoy life tenure
- They can choose when to retire, but are not required to
- Many justices continue serving into their eighties
- This can create strategic retirement decisions (for example, liberal justice Stephen Breyer was reluctant to retire whilst Trump was president, as his replacement would likely be conservative)
United Kingdom:
- Justices must retire at age 70 (unless appointed before 1995, when different rules applied)
- This mandatory retirement has been criticised for forcing capable justices to leave whilst still effective, such as in Lady Hale's case
The Strategic Dimension of Tenure
The life tenure of US justices means that presidents can shape the Court's ideological direction for decades through their appointments. UK prime ministers have much less influence over the Court's composition due to the mandatory retirement age.
Judicial approach
The two courts differ significantly in how justices interpret the law.
UK approach
UK justices generally practise judicial restraint:
- They follow precedent (previous court decisions)
- They defer to parliament, recognising parliamentary sovereignty
- Their interpretative role is limited
- They avoid making decisions based on personal policy preferences
US approach
US justices are more divided in their approaches.
Judicial restraint:
- Mainly practised by conservative justices
- Similar to the UK approach: following precedent and deferring to the legislature
- Emphasis on the original meaning of the Constitution
Judicial activism:
- Some justices adopt a loose constructionist approach
- They interpret the 'living constitution' in a modern context
- This can lead to judicial activism, where justices make decisions intended to improve society
- More common among liberal justices
Constitutional Context Shapes Judicial Philosophy
This difference reflects the contrasting constitutional systems: the US Constitution is sovereign and requires interpretation, whilst UK justices operate within a system of parliamentary sovereignty. The framework within which each court operates fundamentally influences how justices approach their role.
Remember!
Key Points to Remember
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History: The US Supreme Court (established 1790) has over 200 years more history than the UK Supreme Court (established 2009), though both were created to ensure an independent judiciary separate from other branches of government.
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Appointment: The key difference is that US justices are political appointees nominated by the president and confirmed by the Senate, whilst UK justices are selected by an independent commission in a non-political process.
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Tenure: US justices serve for life and can strategically time their retirement, whilst UK justices must retire at 70, giving presidents much more long-term influence over the Court's composition.
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Judicial approach: UK justices practise judicial restraint and defer to parliament, whilst US justices are split between judicial restraint (mainly conservatives) and judicial activism (loose constructionists interpreting the 'living constitution').