Yesterday’s decision of the US Supreme Court in NFIB et al v Sebelius regarding the Affordable Care Act (“ACA”, aka Obamacare), which has convulsed the American political scene, usefully illustrates the important differences between the US Court and its UK equivalent.
The ambit of the Court’s power
Firstly, the American court has much greater ambit to intervene and strike down primary legislation. In the UK, Parliament is – at least in theory – sovereign. In the US, Congress can legislate only in accordance with the US Constitution. Ultimately, it falls to the US Supreme Court to determine whether legislation is constitutional, which was the essential issue over the ACA. In reality, this confers enormous power on the Court.
In the UK, there is no direct equivalent. We have no written constitution by which legislation can be measured. However, the Court can strike down primary legislation on the ground that it is incompatible with European Union law. And in recent times, the Courts here have taken their powers of interpretation to new levels. For example, in Assange, the Supreme Court held that the Extradition Act 2003 had to be interpreted to be consistent with European Union law as it developed despite producing a result which was contrary to express statements made in Parliament during its passage. In this way, the Court showed it was perhaps as prepared to frustrate the will of Parliament as its American counterpart.
The politicisation of the Court
To UK legal eyes, the striking aspect of the US Court is its politicisation. On the Court, there are strongly identifiable liberals and conservatives and predictable voting from them. The separation of Chief Justice Roberts from his other four conservative Justices may represent a significant break, possibly on a par with the conversion in the 1950s of conservative appointee to the Court, Earl Warren, to key liberal. The appointment of Justices to the Court has become an important piece of political theatre in theUS.
There are not the same polarities over here. Judges are not party political in any sense and it is still possible to see judgments as deriving from legal principle rather that the simple application of pre-existing political views.
However, we do now have identifiable liberals (and perhaps conservatives) on the Supreme Court. Unanimous decisions are now much rarer, reflecting the individual dispositions of the judges. The breakdown of the assenting and dissenting judgments in Assange was no great surprise. And the appointment process is garnering more attention, as we saw with the appointment of Jonathan Sumption to the Court last year.
The length of tenure
Another striking aspect of the US Court is the length of tenure. Chief Justice Roberts could remain in his key position for 30 years. The arch conservative, Justice Scalia, has been on the Court for 26 years, Justice Kennedy for 24 years. And judges can be appointed at a relatively young age. Roberts was 50 when he became Chief Justice in 2005, Justice Thomas was just 43 when he was appointed in 1991.
With our Court, a typical length of services is closer to a single decade. The earliest appointed judge from the current bench is Lord Hope who was appointed to the Judicial Committee of the House of Lords in 1996 (although he has had other duties in that time). Lord Reed, the second most recent Justice, is a relative youngster at 55.
Finally, it is also worth noting that for all its eminence and power, the technical operation of the US Supreme Court is stuck in the past compared with that of our own Court. Its website is rather unsophisticated and we understand that Court officers physically hand out paper copies of each opinion in a room where electronics are not allowed, with reporters then having to dash to computers or telephones to broadcast the results. Contrast that to the UK Court which has a well-oiled press office, judgments when they are handed down are immediately available online and are accompanied by useful a press summary, and broadcasters can even take its hearings and handing down of judgments live.
Indeed, the relative backwardness of the US Court had significant (if only ephemeral) consequences yesterday when for example CNN initially incorrectly reported that the Court had struck the ACA down (see below) no doubt on the basis of reading the first few paragraphs of the headnote of the decision and unable to digest a 193-page judgment in the time required for the demands of 24-hour rolling news.