6.2.7, 6.2.8 - Comparing courts and protection of rights

Legal authority and judicial review

Both courts interpret law and adjudicate important disputes, but constitutional supremacy and parliamentary sovereignty give them different limits.

The US Supreme Court operates within Article III and the practice of constitutional review established through cases such as Marbury v Madison. A law inconsistent with the supreme Constitution cannot remain enforceable merely because Congress or a state legislature supported it. Courts can therefore constrain both executive action and legislation, though they require suitable legal cases rather than acting as an unrestricted policy council.

The UK Supreme Court was created by the Constitutional Reform Act 2005 and began work in October 2009. It hears major legal appeals and devolution questions. Courts can find executive action unlawful, including action outside legal powers, and can invalidate subordinate legislation or devolved legislation that exceeds its lawful authority. That is different from a general power to invalidate Westminster Acts.

Under the Human Rights Act 1998, UK courts must interpret legislation compatibly with Convention rights so far as possible. Where compatible interpretation of primary legislation is not possible, designated higher courts may issue a declaration of incompatibility. Under section 4, that declaration does not itself invalidate or stop operation of the Act. Parliament and government can respond through law-making. The UK court's influence can be substantial without being the same constitutional power as its US counterpart. UK Supreme Court on its role, Human Rights Act, section 4.

Miller/Cherry (2019) held UK prorogation unlawful and protected parliamentary accountability. It did not strike down an Act of Parliament. This is a useful reminder that UK review can strengthen Parliament's position against ministers rather than place courts above Parliament. Official case.

If you sit in 2027: Issue 4 corrects “relative extent for their powers” to “relative extent of their powers”. The demand remains a comparison of the legal basis and reach of judicial powers; the correction adds no new power.

Appointments and independence

Judicial independence concerns freedom from improper pressure; judicial neutrality concerns deciding cases on legal grounds rather than party loyalty.

US presidents nominate Supreme Court justices and the Senate confirms them. This gives elected politicians an explicit role in shaping the Court, with ideological expectations often prominent in appointment disputes. Article III's good-behaviour tenure and protection against salary reduction help insulate judges after appointment. Justices do not need re-election or renewed presidential approval to remain in office, and impeachment is an exceptional removal route.

UK Supreme Court selection is organised through an independent selection commission under statute, with legal experience and merit central to the process. The Lord Chancellor has defined powers within the procedure, and appointment ultimately proceeds through the prime minister and monarch; this is not a system wholly without political involvement. However, it lacks the US-style partisan Senate confirmation hearing and vote. Separation from the Lords since 2009 reinforces institutional independence. UK appointment procedure.

UK justices also hold office during good behaviour, subject to retirement requirements; removal requires an address from both Houses of Parliament. Such tenure protections limit the executive's ability to dismiss an inconvenient judge. Both systems therefore combine an appointment process with safeguards after appointment, although US selection is more openly political. Constitutional Reform Act, section 33.

An appointment by a politician does not prove that a later judgment is dictated by that politician. Equally, an independent commission does not eliminate disagreement about interpretation, social background or the effects of decisions. Assess independence by considering appointment, tenure, removal, resources and actual willingness to decide against powerful officials. A controversial decision can be independent even when people disagree strongly with its result.

Rights and effective remedies

Rights protection is effective when people can use a legal guarantee to change treatment, not merely when a document declares a right.

US constitutional rights include the Bill of Rights and later amendments, including Fourteenth Amendment protections of equal protection and due process. Federal and state statutes also protect rights. UK protection combines common law, legislation such as the Human Rights Act, equality law and international commitments. Entrenchment provides one kind of security; access to courts, interpretation, enforcement and legislative action determine practical effects in both.

Compare the same issue: equal access to marriage. In Obergefell v Hodges (26 June 2015), the US Supreme Court held that the Fourteenth Amendment required states to license and recognise same-sex marriages. It overcame conflicting state restrictions through constitutional adjudication. In England and Wales, the Marriage (Same Sex Couples) Act 2013 supplied the legislative route to marriage equality; other UK jurisdictions used their own legal routes. Both produced expanded legal recognition, but the decisive national mechanism differed: constitutional review in the US case and parliamentary legislation in the England-and-Wales case. Do not describe the 2013 Act as a UK-wide Supreme Court ruling. Official US report, Obergefell, UK Act's parliamentary record.