Theoretical Approaches to the Judiciaries (AQA A-Level Politics): Revision Notes

Theoretical Approaches to the Judiciaries

Introduction

When comparing the UK and US judiciaries, we can use three key theoretical frameworks to understand their similarities and differences: structural theory (focusing on institutions), rational theory (focusing on individuals), and cultural theory (focusing on shared ideas and values). Each approach offers a different lens through which to examine how these supreme courts operate and their relationship with government and politics.

Structural: the role of political institutions

The structural approach examines how political institutions shape the power and independence of the judiciaries in both countries.

Structural similarities

Both the US and UK supreme courts share important structural features that protect judicial independence:

Security of tenure means that justices cannot be easily removed from office. This allows them to make decisions based on the law rather than political pressure, as they do not need to worry about losing their positions if they make unpopular rulings.

Separation of powers ensures that the judiciary operates independently from the executive (government) and legislative (parliament/Congress) branches. This institutional separation protects judges from political interference.

Structural differences

Despite these similarities, significant structural differences exist between the two judiciaries:

The US Constitution contains entrenched fundamental laws that cannot be easily changed. This gives the US Supreme Court substantial power to interpret the Constitution and, if justices choose, to engage in judicial activism - making bold interpretations that can significantly shape policy. The Court can strike down laws passed by Congress if it deems them unconstitutional, because the Constitution is sovereign.

In contrast, parliamentary sovereignty is the cornerstone of the UK system. This means that Parliament is the supreme legal authority and can create or overturn any law. The UK Supreme Court cannot override Parliament - it can only declare that laws are incompatible with the Human Rights Act or other legislation. The Court must ultimately defer to Parliament's will.

The appointment process creates another major structural difference. In the USA, Supreme Court justices are nominated by the President and confirmed by the Senate - an inherently political process. This results in justices who are clearly identified as 'conservative' or 'liberal', with higher public profiles. UK justices, by contrast, are selected by an independent Judicial Appointments Commission. They do not have obvious political leanings and maintain a lower public profile.

Real-world examples

Rational: the role of individuals acting to advance their interests or personal preferences

The rational approach focuses on how individual justices make decisions and how other political actors respond to judicial rulings.

How justices should make decisions

In theory, justices should take a rational approach to the law - carefully analysing each case's merits and reaching a logical judgement based solely on legal principles. When the meaning of the law is clear and unambiguous, this should lead to unanimous judgements, which do occur frequently in both courts.

However, legal interpretation is often complex and ambiguous. Different justices may legitimately reach different conclusions based on their own legal analysis. This results in divided judgements, where justices write detailed opinions explaining their reasoning, with those in the minority writing dissents that set out why they disagree with the majority.

Individual judicial preferences and philosophy

Individual justices develop their own legal preferences and judicial philosophy - their approach to interpreting law and the Constitution. In the USA, the clear division between liberal justices and conservative justices means that many judgements are controversial and politically charged. Justices may be accused of judicial activism when they make bold interpretations that significantly affect policy.

UK justices generally adopt a more restrained judicial approach. They tend to defer to Parliament and avoid making politically controversial rulings. This restraint reflects both the structural reality of parliamentary sovereignty and a cultural preference for judicial modesty.

Political pressure on judiciaries

Both judiciaries face criticism and pressure from individuals seeking to advance their own political interests. This politicises the judiciary and can put justices under significant strain.

Political leaders in both countries have attempted to reshape their judiciaries for personal benefit. President Trump appointed an unprecedented number of appeal court judges, deliberately selecting more conservative candidates than previous Republican presidents. Similarly, Prime Minister Johnson appointed Suella Braverman as attorney general - someone who had publicly argued that Parliament needed to "take back control" from the judiciary, which she believed was acting as a "political decision-maker" and "supplanting Parliament".

Cultural: the role of shared ideas and culture

The cultural approach examines how shared values, traditions, and societal attitudes shape the role and perception of the judiciaries.

Shared values and traditions

Both countries have a strong cultural commitment to the rule of law and judicial independence. This tradition has deep historical roots, dating back to Magna Carta (1215), which established the fundamental principle that no one can be imprisoned unlawfully without due process.

The United States inherited these values from its colonial past as 13 British colonies. Both nations pride themselves on representing the best of the Western liberal legal tradition, where an independent judiciary holds the government to account and ensures that the rule of law applies to everyone, including those in power.

The challenge of populism

In recent years, populism has challenged the cultural consensus supporting judicial independence. Populist movements emerged in the form of Trumpism in the USA and the Brexit movement in the UK, culminating in Boris Johnson's decisive general election victory in 2019.

Cultural battles and public profile

The US Supreme Court has a much higher public profile than its UK counterpart, largely because of its role in making landmark judgements that define citizens' rights. Cases involving abortion, same-sex marriage, and gun rights have generated intense cultural battles between liberals and religious or conservative groups. These controversial rulings make the Court a focal point of American political and cultural debates.

The UK Supreme Court, by contrast, maintains a lower public profile. Its deference to Parliament means its judgements are generally less politically significant. The creation of an independent Supreme Court in 2009 was intended to make the judiciary more accessible and visible to the public - a clearer role than the previous system of Law Lords sitting in the House of Lords.

High-profile cases such as the Miller cases (concerning Brexit and the prorogation of Parliament) have raised public awareness of the Court's role. However, it remains less politically significant and less politicised than its American counterpart, reflecting different cultural expectations about the judiciary's role.

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