A Court Divided – What can the US Supreme Court learn from the UK Judicial System

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In the last month the Supreme Court has been put into crisis. The passing of the intellectual juggernaut, Justice Antonin Scalia has placed the Supreme Court in a stalemate; perfectly split between Democrat and Republican appointees.

While the appointment of Justices to the Supreme Court has rarely if ever been seen as contentious issue , in the run up to the 2016 Presidential Election, amidst fears that a Democrat leaning Supreme Court could hinder a prospective Republican President, many prominent Republicans have sought to sabotage any nominations made by President Obama.

Whist it is clearly in the interests of the Republican Party to do whatever is within their power to stop another liberal appointment to the Supreme Court, this issue does expose a fundamental flaw with the US Judiciary. What is the benefit of a politicised Supreme Court?

While the United States Supreme Court differs greatly from its British counterpart, it’s basic function is similar; to judge the legality of legislation passed and to perform checks and balances on the executive and legislature. A key difference between the two systems is that while the British Judiciary has been reformed to remove the influence of politics and the other branches of government, the US system has not.

justice-featureIn the UK, major reforms under the Constitutional Reform Act 2005 have sought to remove the influence of the Lord Chancellor (previously a member of all three branches of government) on the judicial process, by moving the role of judicial appointments and overall control of the Judiciary to the Lord Chief Justice. Whist it is too early to ascertain whether this has had any overall effect on the Judiciary, a greater degree of judicial independence will give the courts a better chance to scrutinise exercise of executive power. Moreover, removing the power of judicial appointments from the executive to the Judiciary has made the process less contentious and sought to maintain public confidence in the Judiciary. Conversely the overtly politicised system of appointment used to appoint US Supreme Court Justices has only undermined public confidence.

Another key difference between the UK and US judicial systems is the manner in which conflicts of interest have been approached by the court. Unlike the US Supreme Court, the composition is of the UK Supreme Court is not fixed and any odd number of Supreme Court Justices (usually 5 or 7 of the 12 total Justices) may sit on a particular case. The flexibility of this system means that in instances where judges may have a conflict of interest, they will not be able to sit on a case. This was seen clearly in the case of R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte(No.2)[1998] where the House of Lords was required to set aside its judgement in an earlier ruling because of Lord Hoffman’s failure to declare his links to Amnesty International, a group that had been party to the appeal. Though the court came to the same result in Pinochet (No.3), the court’s commitment to Judicial neutrality is commendable. Contrasting US case law regarding conflicts of interest, such as the US Supreme Court case of Bush v Gore [2000] surrounding the recount of votes in the 2000 Presidential Election has had the opposing result and the failure of Justices Thomas and Scalia to disclose their links to one of the parties did not render the decision that they reached to be inadmissible.

Though the UK Judicial system remains broadly politically neutral it does have its flaws. Indeed, many commentators such as Griffith in “The Politics of the Judiciary” have noted that the Judiciary has invariably supported “established interests”, be this by allowing the withdrawal of civil servants rights to join trade unions in the Council of Civil Service Unions v Minister for the Civil Service [1984] or by allowing injunctions to prevent protestors on the grounds of nuisance in Thomas v National Union of Mineworkers (South Wales)[1985].Nevertheless, instances where the Judiciary has aired political views are rare within the UK Judicial system.

While it is a fallacy to assume that the US Judicial system will ever be reformed as radically as the UK system was in 2005, there is a hope that a prolonged stalemate between the president and the senate in appointing a new Justice will open discussions on the role of the Judiciary and propel the argument for judicial reform.

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