Jennifer M. Bandy

2015 Temple Bar Scholar Report 

As a law clerk, I spent a considerable amount of time thinking about the effect of English law on our Constitution. The Temple Bar program gave me time to think about the English legal system more broadly. Over the course of one month, my fellow scholars and I met with leading members of the judiciary and the bar, observed the practice of law from inside barristers' chambers and solicitors' firms, and walked the halls of the Supreme Court of the United Kingdom with the Justices and their judicial assistants. We heard about pressing issues in the English legal system, and we shared experiences with similar problems in our own. Over and over again, I was struck by the ways in which the American and English legal systems have been engaged in a conversation about the rule of law that has led them to diverge and then converge again.

The Supreme Court of the United Kingdom is a good example of that conversation. For much of England's history, the judicial authority was associated with the King and the body that advised him, known as the Curia Regis. Parliament gradually took over responsibility for reviewing lower court judgments, and by the eighteenth century, the Judicial Committee of the House of Lords had become the final judicial authority for England and Wales.

The Framers of the American Constitution broke from that tradition to create a government more influenced by English philosophy than by the structures of England's government: They took the federal judicial power and explicitly separated it from the bodies exercising the federal executive and legislative powers. Although they allowed the President and the Senate to select the judges, they guaranteed those judges' independence from the political branches through life tenure and salary protections.

Over 200 years later, Parliament passed a Constitutional Reform bill that drew at least in part on this approach. It transferred the final judicial authority of the United Kingdom from the Judicial House of Lords to a newly established Supreme Court. And it did so expressly to separate more clearly the judicial branch of government from the legislative authority. To that end, it gave the Supreme Court a new name and a new building, changed the title of its judges from "Law Lords" to "Justices," and began efforts to make the work of the Court better known to the British public. But it retained the then-sitting Law Lords as the new Justices, along with the traditions of granting honorary lordships to the Justices; of sitting in panels to hear cases; and of lengthy oral arguments. The new court has at once a much smaller docket than that of our own Supreme Court and a much larger scope of authority because it can address many issues that the Supreme Court of the United States would have to leave to the States.

The Supreme Court of the United Kingdom is thus a uniquely British institution, but one whose creation owes a debt to the American judicial system and to the English philosophers who inspired it in the first place. The court thus reflects a discussion about the rule of law that our countries have been engaged in for centuries. The Temple Bar program is one small piece of that discussion, and I am grateful to the American Inns of Court and COMBAR for allowing me to be a part of it.

Jennifer M. Bandy is a law clerk to Associate Justice Clarence Thomas of the Supreme Court of the United States. She graduated magna cum laude with a bachelor's degree in government from Dartmouth College, where she was a James O. Freedman Presidential Research Scholar. Bandy earned her juris doctor with honors from Duke University School of Law, where she was executive editor of the Duke Law Journal. She received the Dean's Award in Administrative Law, the Faculty Award for Outstanding Achievement in Constitutional Law and Civil Rights Law, and the Order of the Coif. Bandy has worked as an associate at Kirkland & Ellis in Washington, DC, and as a law clerk to Judge William H. Pryor, Jr., on the U.S. Court of Appeals for the Eleventh Circuit in Birmingham, Alabama. She has conducted research on election law and the Voting Rights Act, as well as on alien tort statute jurisprudence.