Origins:
- USA court was based on the words of the Constitution in the original document
- Federal courts were created by the Constitution
- No building until 1790
- UK Court was created as a result of an Act of Parliament in 2005 which saw the separation of powers. 1st October was when it was first opened.
Appointments,
Membership and Tenure:
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USA:
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UK:
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9 justices
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12 justices
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Appointed by POTUS,
confirmed by Senate
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Vacancies filled by JAC,
recommended by Lord Chancellor
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All justices hear all cases
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Between 5-11 justices in
cases
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Life tenure ‘depending on
good behaviour’
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Must retire at 70
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Presided over by the chief
justice of USA
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Presided over by the
president of the court
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Removed by impeachment
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Removed by petition on
advice of both houses and the Monarch.
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Powers:
- Changes in judicial review. In the USA it was ‘found’ rather than set in the Mowbray vs Madison when the court declared a federal law unconstitutional.
- ‘No influence over the sword or purse’
- UK hearing appeals on points of law
- In the UK, judicial review is based on Ultra Vires. To see if those in charge have acted beyond their powers.
- Whilst in the USA, the court is fully independent and everything it says must be followed. In the UK there is a court above the SC. The European Court of Human Rights.
- It is the duty of the UK SC to interpret all existing legislation so that it is compatible with the ECHR.
- In giving effect to the rights contained in the ECHR, the UK SC must not take into account any related decision made by the Court.
- Even though the court is separate from the EU, May still wanted to leave. She dropped this plan in the 2017 GE.
Independence:
- Vastly important in both countries that judges are wholly independent and block out all external pressure from the: executive, legislature, pressure groups, the media and other judges.
- In the UK judges are protected: Immunity from prosecution, immunity from lawsuits over defamation, salaries cannot be reduced.
Independence
In the USA:
- It was something that was debated heavily by the FF.
- By giving judges life tenure and prohibiting Congress from reducing their pay they attempted to move them towards independence
- The argument came up again when the court took the Bush vs Gore case which decided who the POTUS would be
- John Paul Stevens stated: It is the nation’s confidence in the judge guarding the rule of law”
- Again cases like these can be seen such as USA vs Nixon where Nixon had to hand over material demanded by the courts and Congress.
- Clinton vs Jones when Clinton wanted immunity from prosecution but was rejected.
- During the first few weeks of Trump’s presidency when the court declared Trump’s executive order on his so-called “Muslim ban” unconstitutional.
Independence
In The UK:
- Independence in the UK did not exist up until the CRA of 2005 which saw the separation of powers. Before Law Lords were part of the HOL and were seen as a political institution rather than separate.
- The Lord Chancellor’s judicial role to the Lord Chief Justice and the role of presiding officer of the Lords to the Lord Speaker.
- Phillip Norton pointed out that the structures are still confused as the Lord Chancellor doubles as the Secretary of State for Justice
- There are other roles such as the Attorney General where they check judicial appointments or act as legal advisers to the government but also lead the Crown in major prosecutions.
Independence
in the Face of Executive Criticism:
- Judges are inevitably drawn into the public debate over issues facing the country be it in the court room or when chairing public inquiries into scandal.
- In the USA the judges face the most scrutiny from the executive. When the court in Texas vs Johnson declared a Texas state law unconstitutional (burning the flag) Bush Senior said it was “wrong, dead wrong”
- In the 2010 SOTU address Obama said how the month previously the SC “turned over a century of law” and “opening the floodgates”, Samuel Alito was caught by TV cameras shaking his head and saying “not true”. Roberts was asked at a Q&A if it was right for Obama to say that he said “Some people have an obligation to criticises what we do, given their office, if they think we’ve done something wrong. So I have no problems with that”
- He did however say “it was very troubling” that all the Democrat members stood up and clapped at what they think was an incorrect decision taken by the court.
- In the UK, Home Secretary, May (now PM) criticised the judiciary over what she saw as the courts ignoring rules passed by Parliament aimed at deporting more foreign criminals. She accused the judges of “subverting British democracy”
- In the UK a similar situation played out in 2016 after the EU vote which said that Parliament must should play a part in triggering Article 50, the Daily Mail wrote headlines like “Enemy of the people” and “out of touch judges”
- Montesquieu: “There is no liberty if the power of judging is not separated from the legislative and executive powers”