U.S. and British High Courts Compared

Justice Ruth Bader Ginsburg and Baroness Brenda Hale of Richmond Share Similarities of Serving in Top Judicial Seats

It could have taken place in your living room – an entertaining and sometimes irreverent chat between U.S. Supreme Court Justice Ruth Bader Ginsburg and Baroness Brenda M. Hale of Richmond, the first woman to serve on the United Kingdom’s highest court.

In a Jan. 24 discussion at the Law Center’s Hart Auditorium, these two judges sat down with Dean Alex Aleinikoff to compare and contrast the legal systems of their two respective countries, examining everything from the role of law clerks to how a case winds up in the nation’s highest court.

They also shared their experiences as the lone women on the court, whether by laughing over the state of the courthouse restrooms or comparing the proper form of address for female judges, Ginsburg noted that the use of “Mr. Justice” in the United States was dropped one year before Sandra Day O’Connor joined the Court in 1981.

“Sandra Day O’Connor was the lone woman on the U.S. Supreme Court, the first and the only, for 12 years,” said Ginsburg, who is the second woman to serve on the Court. “She had taken care of most of the irrationalities before I got there.”

Hale further commented on titles for those serving the U.K.'s judiciary system. "When you become a member of the House of Lords you have to have a unique name. You cannot have the same name as any other member of the House of Lords unless you are a hereditary peer," Hale said. "I couldn't be just Lady Hale, because there was already a pair with the name of Hale."

Since she grew up in Richmond -- "very different from the Richmond up the road," she told the audience, Hale of Richmond became her surname.

Most importantly, the two judges talked about the U.K.’s upcoming shift in 2009 to a new Supreme Court of the United Kingdom -- and the effect of the move on the judiciary’s ability to decide cases independently, without outside political pressures. Britain’s “Law Lords,” as they are called, presently serve on an appellate committee within the House of Lords, the upper house of the U.K. Parliament. The could possibly give the Law Lords the new title of “Justices,” and a new building of their own.

The U.S. Supreme Court, as Justice Ginsburg pointed out, similarly spent many years in the basement of the U.S. Senate before moving to its present home in 1935.

“It was meant to emphasize that we have a government of three co-equal branches,” Ginsburg said. “When one was housed in the other, some might have [had] the sense that the judiciary [branch] was not fully equal.”

Acting as moderator, Aleinikoff questioned whether the United Kingdom is moving toward a system of judicial review similar to that of the United States, where the Supreme Court has the power to strike down a law as unconstitutional.

Currently, if a law of the U.K. Parliament is found by the court to be incompatible with, for example, the European Convention on Human Rights, the court may attempt to interpret the incompatibility away or can even declare the legislation incompatible, but it is up to the legislature to do something about it, Baroness Hale said.
“It’s not a simple matter of just saying that it’s void,” she said.

The conversation, presented by the Law Center and the Supreme Court Fellows Program Alumni Association, was attended by students and faculty as well as by many recently admitted law students, who were on campus yesterday for a welcoming reception. Among them was Tracey Fung, a 2006 Dartmouth College graduate who is considering Georgetown Law.

“When I saw this on the reception pamphlet, I was really excited,” said Fung. She had already heard Ginsburg at another venue, but she was looking forward to hearing from Baroness Hale as well.

Law Center Professor Carrie Menkel-Meadow, who has studied women in the legal profession for decades, said after the discussion, “This was not only a historic event – an enriching and educational talk about the judiciary [branch] by two of the pioneering female justices in the common law world – but their grace and humor made learning about the similarities and differences of our legal systems a delight to behold.”

Source: Blue & Gray

January 28, 2008