Political Influences on the Judiciary

1. Political Influences on the Judiciary A2 Comparative Gov & Pol: USA, UK & EU

2. Aim • This presentation aims to: • Highlight the political influence of the judicial branches of government in the USA, UK and EU; and, • Evaluate these influences in terms of their significance; and, • Compare* these influences and their significance. • * Particularly focussing on a UK/USA comparison

3. Introduction • All judiciaries (that branch of the government that interprets the law) have political influence: • They form part of the trinity of government • They are an institution of government • They interpret law that other branches have themselves made and influenced • They link government and citizenry • Their decisions have consequences. This could include mandatory action by other branches of government. • But different judiciaries have different influences.

4. The USA

5. The United States Supreme Court • Sits at the top of a federal hierarchy: it is an appellate court. (Article III, Section 1) • The most senior court in the US (Article III, Section 1). Tasked with interpreting the constitution (Article III Section 2). • Composed of nine members (justices) • May only (usually) take cases arising from lower courts.

6. Political Influence • Power to declare legislation (from executive and legislative branches) unconstitutional (‘strike down’) • Judicial Review: • First case: Marbury v. Madison (1803) • Recently: Clinton v. City of New York (1998) • Can often be seen as linked to jurisprudential philosophy: • Roe v. Wade (1973) • Bush v. Gore (2000)

7. Political Influence • In many cases, judicial review turns the Court into a ‘quasi-legislature’: • Affirmative action: Brown v. Board ... (1954) • Schwann v. Charlotte ... (1971) • Individual jurisprudence plays an important part: each justice = 1/9th of court opinion.

8. Constraints on political influence • The Supreme Court’s influence is not unlimited, though: • Congress can legislate around a judgement (e.g. Furman v. Georgia (1972), leading to Greg v. Georgia (1976) on death penalty). • An amendment to the constitution rests with the legislature • There are a series of checks and balances – power of impeachment • Pragmatic limitations – only nine justices, reactionary court, paper-based judgements etc.

9. But.... • There can be no doubt that the US Supreme Court has profoundly influenced US Politics; it has had a key hand in issues that, to a certain extent, define US politics: • Abortion: Roe v. Wade (1973); Thronburgh v. ACOG (1985); PPSP v. Casey (1991) Rust v. Sullivan (1991) • The Death Penalty: Furman v. Georgia (1972); Gregg v. Georgia (1976) • Article I (Religion & State clause): Minersville School District v. Gobitis (1940); West Virginia ... v. Barnette (1943)

10. The United Kingdom

11. United Kingdom Supreme Court • Formerly the Law Lords, in the upper chamber of the Legislature, the House of Lords. • Separation of powers – or separated institutions. • See: http://www.youtube.com/watch?v=EHRmi26qFAA • Appellate court, sits at the top of both civil and domestic criminal justice systems. • Comprised of 12 justices.

12. Political influence • UK Supreme Court reviews (a) final appeals of civil cases, (b) criminal cases and (c) constitutional / public issues of the utmost importance. • It has the power of judicial review: • In cases of illegality, irrationality or procedural impropriety • Cannot review primary legislation, except in cases of breach of EU law, or European Convention on Human Rights (Human Rights Act 1998).

13. Political influence • It is not the highest legal authority for criminal cases: European Court of Justice. • Operates in part through the legislature. As there is no codified constitution, it interprets parliamentary acts and applies them in cases. • Also uses EU framework: Human Rights Act 1998 (from 2000) came directly from ECHR. • Less to interpret from a single document, hence individual jurisprudence plays a smaller role.

14. Constraints on political influence • As mentioned, cannot strike down primary legislation. • Our constitution does not enshrine the judiciary as an arbiter of the law – parliament can legislate its way round judgements. • Can only be reactionary of cases brought to it (usually). Also depends on legislature for legal provision.

15. But... • Developments in the new (from 2005 Judiciary Act) Supreme Court, a separated institution fulfilling more of the principle of limited government, could be interesting: • The Court (and the legal system as a whole) could gain confidence to oppose the legislature / executive. • It may find a role for itself – will it be an ‘umpire’ or an ‘activist’ court. • Much depends on the court’s makeup, and how it evolves over time.

16. The European Union

17. The ECJ and ECHR • Two highest institutions of European law: • European Court of Justice (ECJ) rules on European Law, binding on member states. Highest court in EU criminal justice system. 27 justices (1 per member state). • European Court on Human Rights (ECHR) is a supra-national institution which hears cases arising from the European Convention on European Rights (since 1998). 47 justices (in 5 sections) from across members of the Council of Europe.

18. Political Influence • The ECJ works on two principles: direct effect and supremacy. Direct effect involves the establishment of community law binding on all member states and their legislatures. Supremacy involves the recognition that EU community law is superior to all domestic legislation. • The ECJ has had more social science research conducted on it that any other court, except the US SC. It has a key role in European integration, and clear implications for national judicial sovereignty. • As such, it has a direct effect on the legislative branches of member states (and therefore an indirect effect on the executive and judicial branches).

19. Political Influence • The ECHR rules on potential breaches of the European Convention on Human Rights (1998). • Meritorious appeals under the Convention of Member States’ violations are heard by the court. It cannot strike down primary legislation of members states, as the ECHR is incorporated in national legislation, and as such is declaratory, not binding. • It cannot order a member state to act / cease action. The ultimate sanction for non-compliance is (theoretically) expulsion from the Council of Europe. • Deals with a huge backlog of cases: as of 2010, 120,000 cases waiting to be heard.

20. Comparison

21. Political influence and significance comparison • Legislative influence • Both the ECJ and the US Supreme Court can ‘strike down’ primary legislation (in both cases, a written constitution is the ultimate arbiter). • Neither the UK Supreme Court nor the ECHR can strike down primary legislation. The UK SC’s rulings are no higher than an ordinary Act of the legislature. The ECHR’s rulings are based on a declaratory, but not binding, convention.

22. Political influence and significance comparison • Executive influence • The US Supreme Court can declare any action of a federal official ‘unconstitutional’. The ECJ can rule on executive actions of member states and punish governments. • The UK Supreme Court can only use legislation largely created by the executive to judge the executive with. The ECHR cannot hold executives to account.

23. Which has the most political influence?

24. Any Questions?