22.5.2 UK and US: The relative independence of the Supreme Court

1. Definition of Judicial Independence

2. UK Supreme Court

Basis of Independence:

• Establishment and Structure: The UK Supreme Court was established by the Constitutional Reform Act 2005, which came into effect in 2009. This act separated the highest court of appeal from the House of Lords, symbolizing a significant step toward greater judicial independence. The creation of the UK Supreme Court marked a clear institutional separation between the judiciary and the legislature.

• Appointment Process: Justices of the UK Supreme Court are appointed by a special selection commission, which includes senior members of the judiciary and legal profession. The Prime Minister formally appoints the justices, but their choice is highly influenced by the recommendations of the commission. This process helps to minimize political influence, although the final appointment is still made by the executive.

• Tenure and Security of Office: UK Supreme Court justices have secure tenure, serving until the mandatory retirement age of 75. This security of tenure ensures that justices can make decisions without fear of losing their positions, thereby upholding their independence. Constraints on Independence:

• Parliamentary Sovereignty: The doctrine of parliamentary sovereignty in the UK means that the judiciary cannot strike down primary legislation passed by Parliament. While the UK Supreme Court can interpret laws and issue declarations of incompatibility (particularly concerning the Human Rights Act 1998), it cannot invalidate parliamentary statutes. This limits the Court's independence relative to its US counterpart, as its rulings can be overridden by new legislation.

• Role of the Executive: Although the appointment process is designed to be impartial, the Prime Minister's formal role in appointing justices introduces a potential, albeit limited, avenue for political influence.

3. US Supreme Court

Basis of Independence:

• Constitutional Foundation: The US Supreme Court's independence is enshrined in the Constitution, specifically Article III, which establishes the judiciary as a separate and co-equal branch of government. The principle of judicial review, established in Marbury v. Madison (1803), gives the Court the authority to invalidate laws and executive actions that violate the Constitution.

• Appointment Process: US Supreme Court justices are nominated by the President and confirmed by the Senate. While this process is inherently political, the life tenure granted to justices ensures that, once appointed, they are insulated from political pressures. They serve "during good behavior," which effectively means they hold their positions for life unless they choose to retire or are impeached.

• Judicial Review: The power of judicial review allows the US Supreme Court to strike down laws and executive actions that it finds unconstitutional. This power significantly enhances the Court's independence, as it can act as a check on the other branches of government without fear of retaliation. Constraints on Independence:

• Political Nature of Appointments: The appointment process in the US is highly political, with presidents typically nominating justices who align with their ideological views. This politicization can influence the Court's composition and decisions, leading to perceptions of bias or partisanship. For example, recent appointments during the Trump administration shifted the Court's ideological balance towards conservatism.

• Potential for Impeachment: While extremely rare, justices can be impeached by Congress. This possibility, though unlikely, represents a potential constraint on judicial independence.

4. Comparison of Independence Between the UK and US Supreme Courts

Aspect	UK Supreme Court	US Supreme Court
Constitutional Foundation	Established by statute (Constitutional Reform Act 2005)	Established by the US Constitution (Article III)
Judicial Review	Can issue declarations of incompatibility but cannot strike down primary legislation	Has the power of judicial review, can strike down laws and executive actions
Appointment Process	Appointed by the Prime Minister on the advice of a selection commission	Nominated by the President, confirmed by the Senate
Tenure	Justices serve until age 75	Justices serve for life, unless they resign, retire, or are impeached
Political Influence	Appointment process less politicized, but still involves the executive	Appointment process is highly politicized
Parliamentary Sovereignty	Limited power due to parliamentary sovereignty	Broad power to interpret and apply the Constitution
Impeachment	Justices cannot be easily removed, though they retire at 75	Justices can be impeached by Congress, though this is rare

Conclusion

• US Supreme Court: The US Supreme Court enjoys a high degree of independence due to life tenure, the power of judicial review, and its constitutional foundation. However, the politicization of the appointment process can affect perceptions of its impartiality.
• UK Supreme Court: The UK Supreme Court is also independent, particularly since its establishment in 2009. However, its independence is somewhat constrained by the principle of parliamentary sovereignty and the fact that its decisions can be overridden by new legislation. The appointment process, while designed to be impartial, still involves the executive, which may introduce some political influence.