22.5.1 UK and US: The basis for and relative extent for their powers

Basis for Powers

1. United States Supreme Court:

• Constitutional Basis:
  • The US Supreme Court derives its powers from the US Constitution, specifically Article III, which establishes the judiciary as a separate and co-equal branch of government. The Constitution grants the Supreme Court the authority to interpret the Constitution, making it the final arbiter of constitutional issues.
  • The Supreme Court's power of judicial review, established in the landmark case Marbury v. Madison (1803), allows it to invalidate laws and executive actions that it deems unconstitutional. This power is not explicitly stated in the Constitution but has been inferred by the Court, thereby giving it significant influence over American law and governance.
• Appointment and Tenure:
  • Justices of the US Supreme Court are appointed by the President and confirmed by the Senate. They hold their positions for life, unless they resign, retire, or are impeached. This lifetime tenure is intended to insulate justices from political pressures, allowing them to make decisions based solely on their interpretation of the law.

2. United Kingdom Supreme Court:

• Statutory Basis:
  • The UK Supreme Court was established by the Constitutional Reform Act 2005, which came into effect in 2009. It replaced the Appellate Committee of the House of Lords as the highest court in the UK, marking a significant step in the separation of powers within the UK constitution.
  • Unlike the US Supreme Court, the UK Supreme Court does not have a codified constitution to interpret. Its powers are derived from statute law, common law, and, to a limited extent, European Union law (before Brexit) and the European Convention on Human Rights. It cannot strike down primary legislation passed by Parliament but can issue declarations of incompatibility with the Human Rights Act 1998.
• Appointment and Tenure:
  • Justices of the UK Supreme Court are appointed by a special selection commission and are officially appointed by the Monarch on the advice of the Prime Minister. They serve until the mandatory retirement age of 75. The selection process emphasizes legal expertise and experience rather than political considerations, reflecting the UK's emphasis on judicial neutrality.

Relative Extent of Powers

1. United States Supreme Court:

• Judicial Review:
  • The US Supreme Court has broad powers of judicial review, allowing it to declare federal and state laws, as well as executive actions, unconstitutional. This power gives the Court significant influence over public policy, as seen in landmark decisions such as Brown v. Board of Education (1954), which ended racial segregation in public schools, and Roe v. Wade (1973), which recognized a constitutional right to abortion (later overturned in Dobbs v. Jackson (2022)).
  • The Court's ability to interpret the Constitution means that its decisions can have a profound and lasting impact on American society. For example, Citizens United v. FEC (2010) reshaped campaign finance laws, allowing for greater corporate and union spending in elections.
• Checks and Balances:
  • While the US Supreme Court holds significant power, it is subject to checks and balances from the other branches of government. The President nominates justices, and the Senate confirms them, ensuring that the Court's composition reflects the political landscape. Additionally, the Court's decisions can be countered by constitutional amendments or new legislation, although these are often difficult to achieve.

2. United Kingdom Supreme Court:

• Judicial Review and Statutory Interpretation:
  • The UK Supreme Court has the power of judicial review, but its scope is more limited than that of the US Supreme Court. It can review the actions of public bodies to ensure they comply with the law and can interpret legislation, but it cannot strike down primary legislation passed by Parliament due to the principle of parliamentary sovereignty.
  • The Court can issue declarations of incompatibility when it finds that UK law conflicts with the European Convention on Human Rights. However, such declarations do not invalidate the law; they merely indicate to Parliament that the law should be reconsidered.
• Influence and Limitations:
  • The UK Supreme Court plays a critical role in interpreting and applying the law, but its decisions are more advisory in nature compared to the US Supreme Court. Its influence is evident in cases like R (Miller) v. Secretary of State for Exiting the European Union (2017), where it ruled that Parliament must authorize the triggering of Article 50 to begin the Brexit process. However, the Court's decisions can be overridden by new legislation passed by Parliament.

Comparison Table: US Supreme Court vs. UK Supreme Court

Aspect	US Supreme Court	UK Supreme Court
Basis for Power	Constitutional (Article III, judicial review from Marbury v. Madison)	Statutory (Constitutional Reform Act 2005)
Judicial Review	Broad power to declare laws and executive actions unconstitutional	Limited power; cannot strike down primary legislation
Appointment and Tenure	Appointed by President, confirmed by Senate; life tenure	Appointed by selection commission; serve until age 75
Role in Government	Independent branch with significant influence over public policy	Primarily interprets and applies law; issues declarations of incompatibility
Checks and Balances	Subject to checks by President, Senate, and potential constitutional amendments	Limited by parliamentary sovereignty; cannot invalidate legislation
Impact on Society	Decisions have profound and lasting impact (e.g., Brown v. Board of Education, Roe v. Wade)	Decisions are influential but can be overridden by Parliament (e.g., Miller case)

Conclusion

The US Supreme Court and the UK Supreme Court serve as the highest judicial authorities in their respective countries, but their powers and influence are shaped by the distinct legal and political frameworks in which they operate. The US Supreme Court has broad powers of judicial review, allowing it to significantly impact public policy, while the UK Supreme Court's powers are more constrained by parliamentary sovereignty. Understanding these differences is key to comprehending the role of judicial review and the balance of power in each country's system of government.