Supreme Justice? The US and UK Supreme Courts
| Date | 01 April 2011 |
| DOI | 10.1111/j.2041-9066.2011.00056.x |
| Published date | 01 April 2011 |
| Subject Matter | Feature |
an undemocratic relic of the past. The fact that the chief
judicial body in the UK was housed within the Lords was
a potential source of misunderstanding to the general
public, who might draw the conclusion that the Lords as
a whole acted as Britain’s ultimate court of appeal.
The second argument went closer to the heart of the
perceived weaknesses in Britain’s uncodified constitu-
tion. Strict liberal democratic constitutional theory ad-
vocates a clear separation between the three branches
of government – the executive, the legislature and the
judiciary. Yet in Britain the most important judicial in-
stitution was composed of members of the legislature –
who could not only decide key cases under the existing
laws but also vote in the House of Lords to change the
nature of those laws. A further anomaly was that, until
2003, the Lord Chancellor was head of the UK’s judici-
ary, enjoying a crucial role in the appointment of senior
judges. Yet the Lord Chancellor was also a member of
the executive, since he sat in the cabinet, as well as
playing a prominent part in the legislature as a member
of the House of Lords.
Most constitutional theorists accepted that, in spite
of these anomalies, in practice the British judiciary
had usually (if not invariably) acted to defend citizens
against the state. The problem, ultimately, was that sen-
ior judges in the UK were unable to appraise the actions
of government ministers and officials against a clearly
established set of principles. This power was enjoyed by
the nine justices of the US Supreme Court, under the
terms of the country’s constitution. Thus, for some lib-
eral reformers in Britain, the establishment of a Supreme
Court in the UK could be an important step towards a
constitutional revolution, leading ultimately to a move
from an uncodified constitution to a more formal system
of ‘checks and balances’ like those enshrined in the US
Constitution.
Comparing Two Supreme Courts
It could be argued that comparisons between the Su-
preme Courts of the UK and the US are inappropriate,
due to the much greater power and prestige of the latter
institution. In support of this view, it can be pointed
Supreme Justice? The US
and UK Supreme Courts
The UK’s Supreme Court was established under the
terms of the 2005 Constitutional Reform Act, but,
thanks to delays in finding suitable premises, it
did not begin work until October 2009. Even then, it is
unlikely that many British citizens knew much about
its formation. Indeed, when the Court’s home, the Mid-
dlesex Guildhall in Parliament Square, was attacked in
December 2010 during a student demonstration against
a proposed increase in tuition fees, it is unlikely that
many of the assailants knew what they were attacking.
Even the politics students in the demonstration could
have been forgiven for having only a vague idea of the
Court’s responsibilities and constitutional role. If asked
what they thought of the ‘Supreme Court’, the majority
would probably have assumed that the question related
to the US institution of the same name. Their confusion
would have been understandable, not just because the
US body has been established for much longer, but also
because its importance within the American political
system is universally recognised. By contrast, the UK
Supreme Court is young, its status uncertain.
A Quiet Constitutional Revolution?
On the face of it, the UK’s Supreme Court merely su-
perseded the Appellate Committee of the House of Lords
which had previously acted as Britain’s most important
judicial body. In plainer language, 12 highly qualified
members of the House of Lords – the ‘Law Lords’ – had
acted as the final court of appeal in the UK, as the Su-
preme Court has done in the US since its establishment
in 1789.
Broadly speaking, supporters of judicial reform in the
UK advanced two main arguments for change. First,
British constitutional reformers have long targeted the
House of Lords as an anachronistic institution. Under
the modernising government of Tony Blair (1997–2007)
the majority of hereditary peers were removed from
the Lords as a first step towards remodelling the upper
chamber of the UK legislature. However, by the time
of the Constitutional Reform Act there had been no
agreement on the future composition of the House of
Lords; to a considerable extent it was still regarded as
Since 2009, Britain, like the US, has had a Supreme Court as its highest judicial body. Mark
Garnett compares the two institutions, and finds that while the US Supreme Court is a much
more powerful body, the UK incarnation could have considerable significance in the future.
Unlike its
American
counterpart,
the UK
Supreme
Court is young,
its status
uncertain
26 Political Insight
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