OPINION | US POLITICS

Analysing the political significance of both the US and UK Supreme Courts

Does The US Exceed That Of The UK?

Both the Supreme Courts in the United Kingdom and the United States act differently due to the nature of each country’s constitution. While the UK’s uncodified constitution limits the political significance — the amount it is involved in the state or government-policy as distinguished to the rule of law — that the UK Court has, the contrary US codified constitution only highlights the increased political significance the US Supreme Court has. The US Court represents political appointees of Justices and makes ‘interpretative amendments’ to the US constitution in landmark cases, demonstrating its political significance. While in the UK, the Court follows the doctrine of judicial independence to maintain judicial neutrality, though still hold limited political significance due to supranational influence — the European Court of Justice. Despite this, it is evident that the political significance of the US Supreme Court does far exceed that of the UK Supreme Court.

Indeed, the political significance of the US Supreme Court far exceeds that of the UK Supreme Court as we can see ‘Liberal’ and ‘Conservative’ judges in the USA and the tendency of justices to match the political leanings of the president who appointed them in comparison to more neutral judges who become appointed in the UK. For instance, the recent appointment of Amy Coney Barret by President Trump demonstrates the political significance of the US Court, as the more conservative-leaning Justice Barret could now act in favour of Court rulings in overturning activist cases such as Roe v. Wade (1973) or Obergefell v. Hodges (2015) which reflect upon Republican tendencies of ‘pro-life’ and ‘pro-religion’ within the 2020 Republican-controlled Senate. While Trump’s nomination has proven to be highly controversial, it supports the claim that appointments match the political leanings of the president who appointed them. This claim also demonstrated itself by President Johnson’s appointment of Justice Marshall, the first African-American to the Court in 1967 following the 1965 Civil Rights Act, after which Justice Marshall continued to challenge racial disparities. Unlike in the US, judges in the UK Supreme Court follow the tendency of judicial neutrality and judicial independence, whereby political influence should separate itself from decisions made in the Court or through judicial review. Judicial neutrality, therefore, acts to serve as a safeguard for the rights and privileges provided by the UK’s uncodified constitution. Despite this, the decision made by the UK Court in January 2017 stating that there must be a vote in parliament to trigger Article 50 demonstrated the increase in a lack of judicial independence and neutrality. Nonetheless, the political significance of the US Supreme Court far exceeds that of the UK Supreme Court as presidential appointments provide the basis to create rulings in favour of political leanings.

Moreover, the political significance of the US Court also far exceeds that of the UK Court as the US Supreme Court can make ‘interpretative amendments’, whereas the formal amendment process makes it very difficult for Congress to amend the Constitution. In contrast, the UK Supreme Court cannot amend the Constitution (though it can clarify its meaning), whereas Parliament can do so with ease. For instance, while the Bill of Rights balances individual rights and majority rule (allowing the majority to pass legislation through its elected representatives — Congress), the decision in Roe v. Wade (1973) acted as an example of the US Supreme Court creating ‘interpretative amendments’. After-which Roe dissolved virtually all abortion restrictions that were previously imposed at the state level, as none of the first ten amendments explicitly stated a pro-life stance on abortion. Similar ‘interpretative amendments’ demonstrate themselves in other landmark cases within the US Supreme Court, such as the rulings in Brown v. Board (1954) which pursued desegregation in education and in Engel v. Vitale (1962) which stated that government-directed prayer in public schools violated the Establishment Clause of the First Amendment. Unlike in the US, the UK Supreme Court cannot interpretatively amend an Act of Parliament as statute law remains the supreme source of constitutional law in the UK. The power of judicial review under the UK Court, however, establishes a legal precedent which creates common law whereafter clarification of the law is applied opposed to merely applying the letter of the law. The power of such review applies itself in the ruling in Donoghue v. Stevenson (1932). Donoghue laid the foundation of the modern law of negligence and established the general principle of the duty of care. The Court’s role in judicial review, to assess the actions of those in power to ensure they had not acted beyond the authority given to the — ultra vires — has increased and become more politically influenced. This increase has been due to the growing importance of EU Law and the elevated status given to the ECHR under the 1998 Human Rights Act. Nonetheless, the political significance of the US Supreme Court far exceeds that of the UK Supreme Court as ‘interpretative amendments’ make a significant political change to the US constitution.

However, one should also note that the Powers of the UK Court are becoming as significant — due to the UK Supreme Court’s power to strike down national laws that contradict supranational laws. The European Communities Act (1972) saw the incorporation of the Treaty of Rome into UK law which gave European laws precedence over conflicting UK statutes, whether past or present. Alternatively, Justice Lord Mace argued that Parliament gave the European Court of Justice (ECJ) a “blank cheque”. For instance, the Factortame (1990) case saw the ECJ establish the precedent that UK courts can suspend UK statute law where it appears to violate EU law until the ECJ is available to decide as to the legality of the statute in question. Therefore, the political significance of the US Supreme Court does not far exceed that of the UK Supreme Court as UK courts have been able to suspend UK statutes since 1990 that have appeared to violate EU law. This power demonstrates itself in United States of America v. Nolan (2015), which resulted from a claim against the US government under the Trade Union and Labour Relations Act (1992). Nolan, employed at a US army base in Hampshire, argued that there should have been more consultation with workers’ representatives before making her redundant. The US government argued that the Secretary of State acted ultra vires under the 1972 ECC Act. The UK Court ruled in favour of Nolan and argued that the Secretary of State did not exceed his powers when issuing regulations in 1995. Nolan, therefore, acts notably in demonstrating the powers of the UK Court becoming as significant as the powers of the US Supreme Court are similar in striking down national laws that contradict other constitutional rights, as highlighted by the US Court’s ruling in Boumediene v. Bush (2008) where foreign terrorism suspects were affirmed to have constitutional rights to challenge their detention at Guantánamo Bay.

Additionally, the UK Supreme Court can also strike down actions of the executive, similar to the US Supreme Court, that comes into conflict with the Human Rights Act (1998). The 1998 HRA incorporated most of the articles of the European Convention on Human Rights (ECHR) into UK law, which allowed citizens to pursue cases under the ECHR through the UK courts as opposed to having to go directly to the ECtHR in Strasbourg. The UK Supreme Court, therefore, acts politically significant as it can provide declarations of incompatibility with parliamentary statutes that appear to violate the rights guaranteed under the HRA. While these are just declarations, they hold a ‘persuasive authority’ that has enhanced the protection of individuals rights in the UK and have illustrated the extent of the ultra vires power and its limitations, while also demonstrating the extent of the judiciary’s power under the ECHH. For instance, the UK Court’s decisions in Tigere v. Secretary of State for Business, Innovation and Skills (2015) and in R. (Reily) v. Secretary of State for Work and Pensions (2016) both demonstrate the significance that the UK Court has in striking down actions of the executive. In Tigere, the Court ruled that negative impacts on appellant’s rights under the right to education and prohibiting discrimination cannot be justified when Tigere who had arrived in the UK from Zambia aged 6 was not eligible for a student loan for her undergraduate degree as she did not have indefinite leave to remain in the UK. In R. Reilly, the Court ruled that the government department in question, the Department for Work and Pensions, had not established slavery, but had acted beyond the authority given to it by parliament under statute law. Therefore, the UK Supreme Court acts similar to strike down actions of the executive when contradicting certain rights, as seen in the US Court ruling in Engel v. Vitale (1962). Thus, the political significance of the US Supreme Court does not far exceed the UK Supreme Court.

To conclude, while it is evident that the UK Court does hold political significance, the doctrines of judicial independence and neutrality mark the distinction between the US and UK Supreme Courts. UK Supreme Court Judges are to be politically neutral and act independent from the Executive and Parliament and does not hold overall political significance in striking down laws as unconstitutional due to the uncodified nature of the UK constitution. Therefore, the political significance of the US Supreme Court does far exceed that of the UK Supreme Court because political leanings of the president who appointed Justices are evident and ‘interpretative amendments’ cause significant political change to the US constitution.

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