A U.K. Court Without the Wigs





LONDON -- The justices of the U.S. Supreme Court long have been Anglophiles, routinely turning to antique English cases to help decide issues from gun rights to terrorism.

The late Chief Justice William Rehnquist had gold stripes stitched into his robe to emulate the British Lord Chancellor's costume in a Gilbert and Sullivan opera.

Now, the Mother Country is following the lead of its offspring. This month, the U.K. replaced its Law Lords -- a committee of noblemen that served as the highest tribunal for much of Britain -- with the new Supreme Court of the United Kingdom. It isn't just the name that echoes the top American court. For the first time, the U.K.'s highest court is fully separated, American-style, from Parliament and its legislative function.

The occasion is noteworthy enough that the U.S. Supreme Court canceled its session Friday so that Chief Justice John Roberts and Associate Justices Antonin Scalia and Stephen Breyer could attend the U.K. court's opening, with Queen Elizabeth II presiding.

"Over 200 years or more of our Supreme Court history, the cases are filled with references that show our law is based on English law," said Justice Breyer. "They are perhaps taking a leaf from our book."...

... The U.K. isn't seeking to clone the U.S. legal system that has evolved, with plenty of its own idiosyncrasies, over the past 200-plus years. And there remain many significant differences between the two supreme courts. The U.S. court derives its power from the U.S. Constitution, while the British court is created by Parliament. The British court generally doesn't have the power to strike down legislation, as its counterpart across the Atlantic does...

... It's no surprise that in their earliest days, American courts relied heavily on English law. Or that the U.S. Supreme Court, in 1792, decided to base its own procedures on those of the King's Bench and Chancery courts in London.

More striking is the degree to which the U.S. Supreme Court continues to cite English precedent. In last year's decision finding a right of personal self-defense in the Second Amendment, Justice Scalia cited at least 10 British cases, statutes and royal proclamations dating from 1671.

In a 2004 Guantanamo case, Justice John Paul Stevens, writing for the majority, cited English legal precedent dating as far back as the Magna Carta of 1215 to find that inmates could invoke habeas corpus, a legal challenge to unlawful detention.

Today, the U.K.'s most senior judges already have close links with their American counterparts. A tradition of exchanges was initiated under Chief Justice Warren Burger, who served from 1969 to 1986. Chief Justice Roberts has already been to the U.K. at least twice this year, including a visit in July, where he attended one of the final sessions of the Law Lords and spoke at a conference alongside the head of the new U.K. court, Lord Phillips. The British judiciary sent a delegation to the U.S. Supreme Court to gather research in preparation for setting up its own Supreme Court.

The new court has its roots in a surprise 2003 announcement by then-Prime Minister Tony Blair: Britain would end a more than 600-year association between the highest appeal court and the House of Lords. The proposal included abolishing the office of lord chancellor, the head of the judiciary, as well as replacing the Law Lords with a Supreme Court...



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