Supreme Courts: the US and UK compared
Three judicial assistants at the UK Supreme Court, who received grants from the Clark Foundation for Legal Education to visit the US Supreme Court, have written a comparative study based on their experience
George Bernard Shaw once famously described Britain and America as “two nations divided by a common language”. During an educational visit to Washington, DC we and our fellow judicial assistants from the Supreme Court of the United Kingdom had the chance to discover exactly what he meant. In this note we hope to outline some of the primary differences between our two systems. Given the focus of our visit to Washington, this note will concentrate on providing a brief comparative overview of the appellate systems in the United Kingdom and the United States.
A. The role and power of the US and UK Supreme Courts
As one may expect, the US and UK Supreme Courts share a number of similarities. Both serve as the highest appellate court in their jurisdiction on crucial matters of domestic law. Both hear only a limited number of cases each year, with those which come before them tending to concern questions of great legal importance. And both issue judgments which are binding on inferior courts across their respective jurisdictions.
Yet omnipotence is not always the order of the day. Indeed, it is important to recognise that neither court enjoys unlimited jurisdiction. The US Supreme Court is the final arbiter on questions of federal constitutional law, and enjoys appellate jurisdiction over federal courts and over state courts insofar as the cases before the latter concern matters of federal law. However, it does not have jurisdiction over matters of state law; state Supreme Courts have the final say in that sphere.
Similarly, the UK Supreme Court enjoys wide powers as the final court of appeal for all civil cases in the United Kingdom and for all criminal cases from England, Wales and Northern Ireland. However, the UK Supreme Court’s jurisdiction is limited in Scottish criminal cases, with the court enjoying jurisdiction only insofar as a devolution or compatibility issue arises. In addition the power of the UK Supreme Court is limited by the obligation to make a preliminary reference to the Court of Justice of the European Union where any question of EU law arises. The only instance in which the UK Supreme Court may decide a point of EU law is where the correct application of EU law is so obvious as to leave no scope for reasonable doubt (the acte clair doctrine).
The US Supreme Court tends to enjoy a higher domestic profile than does the UK Supreme Court. This can be attributed to a number of factors. First, the US Supreme Court is a fully fledged constitutional court. The United States is possessed of a written constitution which enjoys a degree of popular legitimacy bordering on reverence. This constitution sets the parameters within which executive and legislative action may occur. As the court with the final say on matters of constitutional interpretation, the US Supreme Court often finds itself cast in the role of constitutional umpire. Many of the cases which come before it concern questions of the utmost political importance. Does the right to privacy include the right to obtain an abortion? Is the Affordable Care Act (“Obamacare”) constitutional? Should a recount continue in Florida when the outcome of the presidential election hinges on the allocation of the electoral college votes from that state?
Following the establishment of devolved institutions in Scotland, Wales and Northern Ireland and the incorporation of the European Convention on Human Rights into domestic law, the UK Supreme Court often assumes the mantle of a constitutional court. But in the absence of a written constitution setting out clear constraints on the role of the UK Parliament, this constitutional role is limited in comparison to its American counterpart.
The longevity of the respective courts is a further differentiating factor. In many respects the UK Supreme Court is in fact the older institution. In its previous guises the UK Supreme Court has been playing a key role in the development of the common law since long before the United States of America was a twinkle in George Washington’s eye. However, in other respects the UK Supreme Court is the younger institution, having only arrived on the judicial scene in 2009. By comparison the US Supreme Court was established in 1790. Its role is firmly established in the consciousness of the American public. Its existence is specifically provided for in the founding documents of the USA. Any American with so much as a passing interest in public affairs will know of a number of seminal US Supreme Court cases which helped shape American history for better or worse: Brown v Board of Education, Dred Scott, Plessy v Ferguson, Roe v Wade, and Bush v Gore.
It is therefore clear that despite a range of shared characteristics there are several factors which serve to distinguish these two great legal institutions from one another. And there are few spheres in which these differences are greater than that of judicial appointments.
B. How do the judges get there?
One area in which the American approach differs sharply from that adopted in the United Kingdom is judicial appointments. To British eyes the American approach – with its emphasis on confirmation hearings and popular elections – appears, as that paragon of Britishness, Sir Humphrey Appleby, might have put it, somewhat novel. Surely such methods of judicial selection threaten judicial independence? Surely the most suitable candidates for judicial office are not always those best able to negotiate the pitfalls of a confirmation hearing or the pressures of a hustings “on the trail”?
But it is crucial to remember that there is another perspective. Given that courts in the United States are involved in matters which we in the UK might consider “political”, the need for popular legitimacy can reasonably be said to be greater. In the United States the requisite consent is conferred either by the local electorate or by that most august of legislative chambers, the US Senate. It was suggested to us during our visit that the need to obtain popular consent acted as a break on judicial activism. Confirmation hearings and elections help to answer that age-old question: who is to hold the judges to account? Otherwise, as proponents of the American model might see it, the judiciary will end up in the position of the harlot: all power but no responsibility. Stanley Baldwin may have aimed this famous jibe at his enemies in the press, but many American conservatives would find the epithet equally well-suited to liberal judges. After all, if judges are left to interpret constitutional provisions in light of contemporary mores, those mores might end up bearing a striking resemblance to their own political opinions.
It is also worth bearing in mind that the American emphasis on obtaining popular consent applies throughout the judicial system and not just – as is sometimes assumed – at Supreme Court level. In many US state courts, judges are chosen by means of popular election. Prospective judges are required to dust off the rosettes, reach for the loudspeaker and put themselves forward for election. This will most often involve competing for a party nomination in a primary election before running in the election itself. Political tactics will need to be considered, endorsements procured and campaign funds raised. As American elections are notoriously expensive, this last factor often looms especially large. This can pose a most serious problem where campaign funds are donated by groups likely to be involved in litigation before the local courts. A criticism might thus be levelled that popular consent comes at the cost of judicial independence.
A further concern is that elections can discourage able but camera-shy candidates from seeking judicial office. Whilst elections confer popular legitimacy, they may not always be the best means of selecting the most meritorious candidate for judicial office. An able candidate may be defeated by a less able competitor because his or her party is less popular in the local area in question. What chance then for a brilliant Republican lawyer in New York or a formidable Democrat in Alabama? A candidate with less by way of campaign funds might prove unable to communicate his message to a sufficient proportion of the local electorate.
In a recent election exemplifying such difficulties, a candidate with a law degree but little legal experience reached the two-person run-off for the Republican nomination for a position on the Texas Supreme Court, coming ahead of another Republican candidate possessed of judicial experience. The legally inexperienced candidate in question, Rick Green, a former elected member of the Texas House of Representatives, sought to convince local electors of his suitability for election to one of America’s highest courts by releasing a television advertisement featuring an endorsement from Chuck Norris, an actor renowned for his role in martial arts films. He was only narrowly defeated in the run-off. What makes a candidate electable is not necessarily what makes a good judge.
It may also be argued that tying judicial appointments to contemporary popular opinion may prevent the judges from performing one of the most important of their intrinsic functions: taking decisions that favour the unpopular when justice requires them to do so. One need only consider the position of a judge whose potential re-election will follow his or her decision in a case concerning which there is a prevalent moral panic. Should justice require a decision which would not satisfy the public’s desire, what is the judge to do? He or she is faced with a direct conflict between improving his prospects for re-election and doing justice in the case. Indeed, it is with such cases in mind that it may be thought that popularity should be irrelevant to the role of a judge, and should more properly be a concern for politicians.
In this regard, Justice Breyer has endorsed such sentiments in relation to the US Supreme Court. He has repeatedly stated that it is not the job of Supreme Court justices to be popular; indeed, the fact that they do not face re-election preserves their independence. Of course, when it comes to the federal judiciary popular elections are off the menu. However, from the perspective of a British observer the judicial selection process can seem almost as alien.
In the United States all federal judges must be nominated for appointment by the President. Having secured the approval of the most powerful human being on the planet, the no doubt giddy nominee is brought swiftly back down to earth with a confirmation hearing, or hearings, before the Senate Judiciary Committee. The ensuing “confirmation” process is often gruelling but, given that all nominees require Senate approval, the process is a necessary one. The nominee can expect to be grilled by the nation’s leading legislators on their knowledge of the federal law and their views on topical legal questions. Senate approval is by no means guaranteed; 12 Supreme Court nominees have been rejected by the Senate.
The most recent was Robert Bork, a conservative nominee of Ronald Reagan. Bork, a leading scholar of antitrust law and a constitutional originalist, was vociferously opposed by liberal members of the Democratic Party, most famously Senator Ted Kennedy of Massachusetts. The Democratic campaign against Bork was so vociferous – and so successful – that a new verb entered the English lexicon: to bork (to defame or vilify (a person) systematically, especially in the mass media, usually with the aim of preventing his or her appointment to public office). In 2006 then-White House Counsel Harriet Miers was nominated for appointment to the Supreme Court by President George W Bush. However, the nomination attracted criticism from across the political spectrum, given the nominee’s personal closeness to the President and her lack of judicial experience. Miers opted to withdraw her nomination before a vote could even be held; in this instance a little borking proved quite sufficient.
Below the Supreme Court
In addition to the US Supreme Court, sitting directly below it in the federal judicial hierarchy are the US Courts of Appeal (also known as Circuit Courts). There are 13 Circuit Courts in all, each covering a distinct geographical area of the United States. For instance, the 5th Circuit is based in New Orleans and covers the states of Louisiana, Mississippi and Texas. The neighbouring 11th circuit sits in Atlanta, Georgia and serves Alabama, Georgia and Florida. As the US Supreme Court takes so few cases every year (around 80), the vast majority of legally important federal cases are determined by these Circuit Courts.
At present the difficulty in obtaining the necessary political agreement for judicial appointments has led to a number of vacancies on the Courts of Appeal remaining unfilled. The majority of US Circuit Courts have at least one vacant position. The problem is most pronounced in the Court of Appeals for the District of Colombia where 28% (three out of 11) of the seats remain vacant (although nominees are in place at the time of writing). This high number of vacancies is most likely because the DC Circuit deals with reviews of the actions of US Government agencies, and is thus regarded as the most important and powerful of all inferior appellate courts.
This large number of unfilled seats has led to criticism that the appointment process is undermining the effectiveness of the US judicial system. With so many seats left vacant, more is expected of those judges who have successfully navigated the troubled waters of the confirmation process and reached the promised land of the federal bench. Furthermore, the number of vacancies compels retired or “senior” judges to continue carrying a heavier workload than many would otherwise desire.
Job for life
A further difference between the UK and US Supreme Courts is that in the United States judges are appointed for life; there is no retirement age. In the United Kingdom judges are statutorily required to “hang up the gavel” at the tender age of 70. The few still serving who were appointed before 31 March 1995 may continue in judicial office until the ripe old age of 75. Two Supreme Court Justices, Lords Hope and Walker, recently retired on their 75th birthdays.
In the United States no such guillotine falls. A 2010 retiree, Justice John Paul Stevens, continued his service on the nation’s highest court until the age of 90. His erstwhile colleague Justice Ruth Bader Ginsburg continues to serve on the court at 81 (she recently joked that Justice Stevens was her “model” to emulate). Her attitude has prompted criticism from liberals who would like her to retire under President Barack Obama so as to ensure the appointment of a like-minded replacement. Given the politicised appointment process, these liberals are concerned that should a Republican candidate win the 2016 Presidential election, this could tilt the court’s balance decisively in a conservative direction.
The number of judges appointed to the US Supreme Court has also varied over time. Currently there are nine Justices: the Chief Justice and eight Associate Justices. Article 3 of the US Constitution leaves it to Congress to fix the number of judges to serve on the court. One of the most controversial proposals in the court’s history came in 1937 when President Franklin D. Roosevelt introduced his infamous “court-packing plan”. The scheme, which was introduced under the innocuous title of the Judicial Procedures Reform Bill of 1937, would have enabled President Roosevelt to appoint one new Justice to the Supreme Court, up to a maximum of six, for each serving Justice over the age of 70 years and six months. The plan was seen for what it was: an attempt to pack the court with those of a like mind to Roosevelt. FDR’s frustration at the conservative court’s hostility to his radical New Deal legislation had boiled over. Nonetheless, the plan was widely criticised. In the end President Roosevelt backed down. However, he need not have worried: he got his way in any event when a number of Supreme Court Justices retired, thereby allowing him to appoint liberals in their place.
C. How do cases get there?
Selection process in the USA
Every year, the US Supreme Court receives around 10,000 petitions for certiorari (or “cert”), which are essentially applications for permission to appeal, of which it grants around 80. Given the number of petitions it would likely prove impossible for all nine justices to analyse every petition in detail. As a result the court operates a so-called “cert pool” system. All the justices participate in the cert pool, with the exception of Justice Alito. Under the cert pool, petitions are randomly allocated to a law clerk from the chambers of one of the eight participating justices. The clerk in question will draft a cert memo summarising the case and the issues arising and will give an opinion as to the appropriate disposal. The memo will then be circulated to all of the justices for a decision. A final determination as to disposal will be taken by all nine justices voting in conference. A petition will only be granted if there are “compelling reasons for doing so”.
Interestingly, the range of remedies open to the court includes the option to overrule the court below by way of reasoned order. This power to summarily overrule an inferior court allows the US Supreme Court to undo an apparently clear injustice without taking the time-consuming course of allowing an otherwise unmeritorious case to come before the court for a full hearing.
Another curiosity of the US Supreme Court system is the so-called “rule of four”. This rule allows for a petition to be granted provided at least four of the justices vote in favour. The rule of four is intended to prevent a narrow majority of the court from controlling its docket.
There are other curiosities which exist in Washington. When deciding to dismiss a petition the US Supreme Court generally does not provide reasons. In addition, if the court grants permission, hears the case and then decides at the eleventh hour that the petition should never have been granted in the first place, it can simply decide that the cert petition was improvidently granted.
The process in the UK Supreme Court is similar in certain respects. A party aggrieved by a decision of the Court of Appeal must in the first instance seek permission from that court to appeal to the Supreme Court. If that permission is refused, as usually happens, they may seek permission from the Supreme Court itself. This rule does not apply to civil appeals from the Scottish courts, however.
The number of applications for permission to appeal to the UK Supreme Court is unsurprisingly much lower (averaging approximately 250 over the last three years) than in the United States, given the smaller population in the UK, but roughly the same number are granted (averaging approximately 70 over the last three years). As in the US Supreme Court, applications for permission to appeal are allocated randomly amongst judicial assistants, who draft memorandums on the cases allocated to them. However, unlike in the US Supreme Court, judicial assistants are not asked to give their opinions as to disposal on the face of the memo. Groups of applications are then allocated to a series of three judge panels. This contrasts with the American approach where all nine justices vote on all petitions. Generally speaking, if one justice feels very strongly that permission should be granted, the court will grant permission. This serves a similar purpose to the American “rule of four”, in that it gives a minority of the court’s membership a say in determining its caseload.
In the UK Supreme Court permission will be granted where the case raises an arguable point of law of general public importance which is appropriate for the Supreme Court to consider at that time. Unlike in the US Supreme Court, there is no provision for the court to summarily overrule the judgment of the court below. Nor can the UK Supreme Court retrospectively reverse its decision to grant permission to appeal after the hearing has taken place; even in those cases where permission has been “improvidently granted” a judgment will be promulgated. Also, unlike its American counterpart, the UK Supreme Court will give reasons where it determines that an application for permission to appeal ought to be refused. The provision of reasons is a relatively recent innovation and is, at least in part, designed to ensure compliance with EU law. This in itself is perhaps a further point which serves to illustrate the difference between the two jurisdictions.
Finally, it should be noted that the UK Supreme Court has slightly less control over its “docket” than its American counterpart. First, final decisions in Scottish civil cases may be appealed to the Supreme Court without the court's permission. All that is required is that two Scots counsel certify that the appeal is reasonable. However, it should be noted that when it is brought into force, s 117 of the Courts Reform (Scotland) Act 2014 will effectively introduce permission requirements in line with those applicable in the other jurisdictions of the United Kingdom.
Secondly, and for docket management purposes perhaps more importantly, the justices of the UK Supreme Court together don a second, distinctly British, cap. The headgear in question comes in the form of their membership of the Judicial Committee of the Privy Council (“JCPC”). Its membership comprises the Supreme Court justices and current and retired judges from the Court of Appeal of England & Wales and the Inner House of the Court of Session in Scotland. The JCPC is the final court of appeal for the British overseas territories, Crown dependencies and a number of independent Commonwealth jurisdictions. These range from the minute (little Tristan da Cunha: population 264) to the rather more sizeable (Jamaica: population 2.9 million). Whilst some appellants require permission to appeal, in many circumstances the unsuccessful party may appeal to the JCPC as of right. This means that the JCPC has a considerable and diverse caseload, comprising cases ranging from criminal trials in Mauritius to offshore financial disputes emanating from the Cayman Islands or the British Virgin Islands. The time spent by the justices of the UK Supreme Court in the JCPC also has an inevitable and direct impact on the capacity of the UK Supreme Court to take on a greater number of cases.
D. How do law clerks get there?
Law clerks form an integral part of the American legal system. In the US Supreme Court every justice is entitled to appoint four law clerks, who remain in post for one judicial year. The Chief Justice is entitled to appoint five law clerks but has tended to appoint only three or four. Prospective clerks apply directly to each justice with whom they wish to work, and many apply to all nine justices. Each justice individually selects his or her own clerks, with some justices preferring clerks whose ideological views conform closely to their own. As in the UK Supreme Court, law clerks will be recent law school graduates with at most a year or two of experience in legal practice. All US Supreme Court clerks will, without exception, have completed a clerkship with a judge in one of the Courts of Appeal. During our trip we attended hearings at the DC Superior Court, the lowest rung on the judicial ladder, and discovered that the judges there also employed judicial clerks. A similar structure is used in state courts across the United States.
In the UK Supreme Court, judicial assistants perform a number of functions similar to those undertaken by US Supreme Court law clerks: drafting memos on applications for permission to appeal, reading parties’ submissions, attending hearings and discussing the cases with the justices. However, the British role is of more recent vintage than its US counterpart: the first judicial assistants (then called legal assistants) were appointed to the House of Lords in 2000. At that stage four assistants were appointed every year; there was office space for only that number. However, since the advent of the Supreme Court in 2009, which has greater office space than its predecessor, the number of judicial assistants has been increased to eight. One judicial assistant is employed by the court on a permanent basis, with the other seven serving for a single judicial year. Under the current arrangements the President and Deputy President of the court are each allocated their own judicial assistant, as are two other justices. The remaining four judicial assistants each serve two of the remaining eight justices.
The life of a judicial assistant is varied and challenging. The work tends to be divided into two main components: (1) work undertaken for one’s allocated justice or justices, and (2) work undertaken for the Supreme Court Registry. Work in the former category will be dictated by the cases to which one’s justice has been allocated; unlike the US Supreme Court, the UK Supreme Court does not sit en banc but in panels of five, seven or nine (depending on the importance or complexity of the case). A judicial assistant will tend only to follow those cases to which their justice has been allocated and will, invariably, attend the hearings in those cases.
Justices will often wish to discuss the cases with their judicial assistant, both before and after oral argument. This provides judicial assistants with an extraordinary opportunity to work closely with the leading legal minds in the country at an early stage in their legal careers. If a justice writes a judgment in the case, it is likely that his or her judicial assistant will be asked for comments on the draft. When the judgment is finalised and ready to go to print, the judicial assistant of the justice who has written the leading judgment will then draft a press summary of the judgment to be published at the same time as the judgment itself.
Justices will also ask their judicial assistant to assist with a range of other tasks. For instance, justices are often asked to give extrajudicial speeches or to attend legal conferences. Judicial assistants may be asked to draft, or at least assist with, these speeches, or undertake other research.
The second main source of a judicial assistant’s workload is the Supreme Court Registry. Every week the registry receives numerous applications for permission to appeal which need to go before the justices for consideration. As part of the permission process each judicial assistant is allocated one permission application per week, and produces a so-called “bench memorandum” summarising the case in three to four pages. These “bench memos” then serve as an introduction to the case for the justices. Cases will not be allocated for judicial consideration until such a memo has been produced, and so their production is an essential stage in the permission process.
In each memo a judicial assistant will set out the facts of the case and describe the treatment the case has received in the court or courts below. The issues raised in the notice of appeal will then be outlined, as will any objection which the respondent or respondents have raised. The memo will not contain any recommendation as to disposal, although individual justices may ask their judicial assistant to produce such opinions on cases which they have been asked to consider. Cases the memos for which have been completed will be grouped into batches of around half a dozen before being allocated to a panel of three justices. The justices will then read through all of the papers relating to each case, and arrange a meeting with their colleagues at which the fate of each application is determined. Judicial assistants are allowed to attend these meetings and, after the determination of the applications by the justices, may be invited to give their own view on those applications.
E. What happens when a case gets there?
It is in this area that the differences between the American and British approaches are perhaps at their greatest. Hearings before the US Supreme Court are both more structured and more formal than equivalent hearings in London. The courtroom itself sits at the heart of a vast building built to rival Congress and the White House, and is a grand and ornate affair: the walls are adorned with allegorical carvings supported by great Roman pillars. The judicial bench is elevated high above the fray, with counsel and the public seated far below. The viewing public (all dressed in business attire) file in quietly before the hearing begins (all spectators are advised to be seated 15 minutes before “the match” kicks off). The arrival of the justices is ceremonial. A buzzer sounds and the nine justices (the court sits en banc) emerge from behind great red curtains. The crowd take to their feet. The court clerk greets their arrival with what even to British ears seems a rather anachronistic introduction, which includes three shouts of the word “Oyez” (pronounced “oh yea”).
The hearing itself is a short affair. Counsel for the appellant will ordinarily have 30 minutes in which to speak, followed by a similar time for counsel for the respondent. Provision is then made for a short reply. This brief exchange contrasts sharply with the approach adopted in the UK Supreme Court, where hearings can last for three or four days. However, the approach appears to work. Indeed, Justice Scalia informed us that never in his more than two decades on the court had he felt that counsel had been granted insufficient time for oral argument.
This emphasis on brevity is also reflected in the court’s rules on written submissions. In the US Supreme Court merits briefs are limited to 15,000 words. Everything from margin sizes to typeface is subject to regulation. Interveners frequently add to the volume of papers by filing briefs setting out their own views in cases in which they have an interest or relevant expertise.
A further striking difference from the British approach reveals itself almost as soon as counsel is on his feet. In normal circumstances counsel will be permitted to get his first line out. But that will often be as far as he gets. From that point onwards the question session begins. The justices speak for almost as much time as counsel. On many occasions the questions appear strongly to resemble assertions. One senses that the interventions are often aimed as much at colleagues on the bench as they are at the unfortunate lawyer on the receiving end. Styles of interrogation vary. Justice Kagan is praised for her short, sharp interventions. Justice Scalia is famously pointed. Justice Breyer is rather less brief but rather more lyrical. When the interrogation session reaches its end a large red light beams out from below the bench. Counsel’s time is up and it is time for him to retire and another competitor to enter the ring. Woe betide the lawyer who ignores this luminous warning!
One feature which intrigued us was the existence of a specialist Supreme Court bar: a small, elite group of counsel receiving instructions in the bulk of Supreme Court cases. Curiously, this is not based on expertise in the relevant area of law but on knowledge of the court and its distinctive style. Membership of this select group is often a stepping stone to even bigger and better things. One Supreme Court lawyer with whom we spoke during our trip, Patty Millet, has since been appointed to the Court of Appeals for the DC Circuit. Not long before that, another star of the Supreme Court bar, Ted Cruz, was elected United States Senator for Texas. John Roberts was raised from the Supreme Court bar not just to the Supreme Court itself, but straight into the office of Chief Justice.
The opportunity to spend a week in Washington, DC learning about the inner workings of the American judiciary was one for which we are all extremely grateful. It enabled us to enhance our understanding of the American legal system and compare the way that that system operates with our own. We are pleased to acknowledge the generous support of the Clark Foundation for Legal Education, to whom we are extremely grateful for providing us with the financial assistance which helped to facilitate our visit, which was a truly eye-opening experience.
Colin McIntyre, Joseph Farmer and Michael Deacon, judicial assistants to, respectively, Lord Mance (2012-13), Lord Hope of Craighead (2012-13) and Lords Walker of Gestingthorpe, Reed and Toulson (2012-13).