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The UKSC and the Supreme Court of the United States

The UK Supreme Court and the Supreme Court of the United States have similarities and important differences. Watch Dr David Yuratich explain more.
One of the most famous Supreme Courts in the world is the United States Supreme Court, or the SCOTUS, which is established by the Constitution of the United States of America and which heard its first case in 1791. It is different than the UK Supreme Court, but we can learn a lot about the work of the UK Supreme Court by comparing the two. First, let’s talk about the judges. The SCOTUS has nine judges, and they usually all hear every case. In contrast, the UK Supreme Court has 12 judges. Because this is an even number, and each case needs to have a clear ruling, it is not possible for all 12 to hear the same case.
Usually, the UK Supreme Court sits in a panel of five, seven, or nine judges, depending on the importance of the case. In exceptionally significant cases, 11 judges will sit, but this has only happened twice. The judges are also appointed differently. SCOTUS judges are nominated by the President of the United States. The nomination is then considered at a public hearing by the US Senate Judiciary Committee before being sent to the full Senate for a further public debate and the final vote. During these hearings, judges are quizzed about their qualifications and legal opinions. In recent years, the process has often been very politically partisan, with nominees often succeeding or failing, depending on whether a majority of Senators support the President.
In contrast, potential judges of the UK Supreme Court must apply for the job and be interviewed. A report is then sent to the Lord Chancellor for their consideration. The Lord Chancellor can either reject it or ask the commission to reconsider. When the recommendation is accepted, it is sent to the Prime Minister, who sends it to Her Majesty the Queen for formal approval. The judges also serve for different periods. SCOTUS judges are appointed for life or until they choose to retire. Justice Ruth Bader Ginsburg, for example, died in office, aged 87, and Justices John Paul Stevens and Oliver Wendell Holmes, Jr. both retired when they were 90.
All judges in the UK, including those on the Supreme Court, have to retire either at 70 or 75, depending on when they were first appointed as a judge. In 2021, the government announced plans to simplify this, so that the retirement age for judges is always 75. Second, let’s think about the sort of cases each court hears. The UK Supreme Court can hear all manner of different cases involving human rights, criminal law, devolution, government powers, employment law, and much else besides. In contrast, the SCOTUS only hears cases which raise an issue of law under the United States Constitution. Those cases can still be very diverse.
For example, two of its most famous cases are Brown v Board of Education, from 1954, in which the SCOTUS held the Constitution prohibited racial segregation in public schools, and National Federation of Independent Businesses v Sebelius, from 2012, in which it held that the federal government could require citizens to buy health insurance. But they all have as a common feature a question about the United States Constitution. This is because the USA has a single codified constitution which takes precedence over all other laws, so it needs a dedicated court to interpret and uphold it. Federal law can be overturned by the SCOTUS if it infringes the Constitution, a principle established in the 1803 case of Marbury v Madison.
In contrast, the UK does not have a codified constitution, and it is not possible for the Supreme Court to overrule an Act of Parliament. The central feature of the UK’s Constitution is usually said to be Parliamentary sovereignty, which is the idea that Parliament can pass any law it wants to, and that nobody other than Parliament may question the validity of an Act of Parliament. Although it cannot strike down an Act of Parliament, something that the UK Supreme Court, and indeed the High Court and Court of Appeal, can do is make a declaration of incompatibility under Section 4 of the Human Rights Act 1998.
This is the power given to the courts by Parliament to say that an Act of Parliament is incompatible with the European Convention on Human Rights, but that’s all. The declaration of incompatibility does not affect the validity of the law. It is a signal to Parliament that the law is in breach of the Convention, but only Parliament can change the law. There are areas where the two courts are more similar. One similarity is that the USA, in part, has a common law system, where a lot of law comes from decided cases rather than legislation. Common law systems often share similar legal principles.
This means that, from time to time, the SCOTUS will cite cases from the UK and, sometimes, the UK Supreme Court will discuss cases from the USA. The two courts certainly do not bind each other but, sometimes, their cases can be helpful in answering a shared legal problem. For example, in the UK Supreme Court case Lee v Ashers Bakery, Lady Hale’s judgment discussed a similar case from the SCOTUS, called Masterpiece Cakeshop v Colorado Civil Rights Commission. That ruling helped support the conclusion that Ashers Bakery did not discriminate against Mr Lee on the basis of his sexual orientation, when it refused to bake a cake bearing a message in support of gay marriage.
It’s also quite common for the UK Supreme Court to consider relevant cases from Australia, Canada, New Zealand, and South Africa, and for the courts in those countries to discuss UK cases. In summary, then, the SCOTUS and the UK Supreme Court are very different institutions, but they have some things in common. Ultimately, they are called on to answer the most serious and difficult questions of law in their countries, but in very different legal landscapes.
In this video Dr David Yuratich explores the similarities and differences between the UK Supreme Court and the Supreme Court of the United States.

The Supreme Court of the United States was established by the Article III of the 1789 United States Constitution but this elaborated neither its exact powers or prerogatives.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Instead, the Supreme Court began to take shape with the passage of the Judiciary Act of 1789, the culmination of the first bill introduced in the United States Senate. It first assembled in 1790 in New York City, then the capital of the United States, and its Justices handed down their first ruling on 3 August 1791 in the case of West v Barnes.

Which landmark or current SCOTUS cases or rulings have you heard about or remembering reading about in school? Let us know in the comments below.

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Inside the UK Supreme Court: Its Role, Its Work, and Cases that Affect Us All

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