abstract. The structure and operation of a federation’s judicial system are complex, as any student of Federal Courts well knows. But they are also core to a federation’s success. It is therefore surprising how little attention scholars have paid to the design and operation of “judicial federalism” from a comparative or theoretical perspective. In our effort to fill this gap, we rest our analysis on two key assumptions about federal judicial design: it should reinforce the continuation of the federation and ensure judicial legitimacy. We then examine how institutional design reflects these goals, focusing on the continuum between a fully integrated judiciary (one set of courts) and separate, dual judiciaries. We argue that the importance of ensuring judicial legitimacy has been overlooked, and we introduce the critical components of sociological legitimacy for federal systems: judicial integrity and judicial autochthony. Then, in a series of case studies drawn from the United States, Australia, and Canada, we analyze how these federations have managed the balance of integrity and autochthony over time. We do not seek to identify an optimal balance but intend to highlight the considerations at stake in constructing a federation’s judicial architecture—and to demonstrate that judicial federalism deserves deeper and more sustained comparative analysis, more systemic assessment by judicial and political actors, and, ultimately, greater attention from those engaged in constitutional design. In other words, with this Article, we seek to establish the field of comparative federal courts as a site of sustained and serious inquiry.

authors. Professor, Director, The Judiciary Project, Gilbert + Tobin Centre of Public Law at the University of New South Wales, Faculty of Law & Justice; Professor, Northwestern Pritzker School of Law. We extend our gratitude to our many colleagues who have provided us with feedback on drafts of this Article, from which our thinking has developed and benefited, including James A. Gardner, Vicki C. Jackson, Tonja Jacobi, Henry P. Monaghan, Jide Okechuku Nzelibe, Anna Olijnyk, Francesco Palermo, James E. Pfander, Judith Resnik, Francisco Javier Romero Caro, Sarah Sadlier, and James Stellios. The Article has been improved by the comments of participants at workshops at University of Colorado Law School (Boulder), Northwestern Pritzker School of Law, Queen’s Law School, EURAC Institute for Comparative Federalism, and the International Society of Public Law (ICON-S). We also owe thanks to exceptional research assistants—Michael Bellis, Alexandra Dakich, Wade Formo, Tara Sohns, Jack Steele, Beau Tremitiere, Joseph Zelasko—and wonderful librarians Tom Gaylord and Sarah Reis. A final thank you to the editors of the Yale Law Journal for their welcome substantive suggestions and unflagging attention to detail.

Introduction

To a student newly introduced to Federal Courts, the design of the American judicial system can be in equal parts fascinating and frustrating, as she masters the turns and U-turns in the justifications and mechanisms for managing the complex judicial relationships that our federalism requires. The accretion of doctrine over two hundred years of active management is only part of a story that also includes myriad congressional statutes and state judicial and state legislative action. More than just technically complex, the field highlights some of the nation’s most contested and enduring political issues, including the legacy of slavery and the challenges of racial bias. There is little wonder the course is considered one of the most challenging in law school.

Notwithstanding the idiosyncrasies of the U.S. system, it seems likely that other longstanding and democratic federations would have similar complexities in their judicial systems, with similarly important ramifications. A casual observer might expect that there would be robust comparative literature and a clearly articulated set of design principles for structuring judiciaries in federations. But comparativists and constitutional designers have generally ignored the area.1

This gap might be explained, at least in part, by the complexities themselves. The technical detail and nuance of the structure and practice of judicial federalism in any individual system are challenging to master and thus the subject of substantial scholarship within each jurisdiction. Assessing judicial federalism comparatively, whether for theory generation or to identify best practices, requires a considerable depth and breadth of knowledge.2 And federal constitutional design introduces many other critical, and sometimes existential, issues: questions of legislative and executive structure, fiscal responsibility, the division of competences among levels of government, electoral systems, and power-sharing arrangements usually command the most scholarly (and practitioner) attention.3

To the extent that the existing literature implicates the judicial structures of federal constitutional systems, the focus remains largely on apex courts,4 with scant attention paid to the broader federal context in which judicial systems necessarily operate.5 Scholars of federalism have long been interested in the role of the “supreme judicial arbiter”—an apex court with authority to interpret the constitution and monitor jurisdictional divides—and how it might affect levels of centralization or decentralization in a federal system,6 as well as the importance of maintaining various safeguards to shore up its institutional independence. But the literature on judicial federalism more broadly has been limited to describing and categorizing federal judicial systems along a continuum between “dual” systems (those with separate, parallel sets of federal and state courts) and “integrated” systems (those with one all-encompassing judicial system).7 This descriptive-design exercise undersells the importance of judicial federalism to judicial legitimacy at both the national and subnational levels and the fragility of that legitimacy, particularly when courts are engaged in highly contested policy arenas.

This lack of attention to judicial federalism is therefore surprising given the surge in scholarly attention to judicial legitimacy. The academy has long been asking critical normative questions about judicial power: what justifies a court’s decision to strike down an act of a democratically elected legislature? What ensures a court’s authority to push back against an overreaching executive? And in the United States, judicial power is receiving renewed critique, given new appointments to the Supreme Court: recent assessments of the Supreme Court’s legitimacy (or legitimacy crisis) have not only filled the pages of the nation’s top law reviews8 but have been regularly found in mainstream media.9

In attempting to understand the scope and extent of judicial power—and, in some cases, to justify its use—lawyers and political scientists have identified, quantified, and theorized various facets of judicial legitimacy, distinguishing a court’s legal legitimacy from its sociological legitimacy and institutional legitimacy.10 And scholars have debated and contextualized the relative importance of these ideas in evaluating, inter alia, judicial independence, accountability, appointments, modes of opinion writing, impartiality, theories of interpretation, and “weak form” judicial review.11

Here, too, the tendency has been to focus on the legitimacy of a legal system’s apex court,12 especially if it has authority to conduct constitutional review or articulate rights—an understandable focus given the critical role an apex court plays in a federal system.13 But scholars have rarely asked how judicial legitimacy might be affected and fragmented by the design and operation of the (often multiple) judicial systems within a federation.14And no one has yet explored the ways in which judicial legitimacy might be complicated by federalism more broadly or how it might (or should) be considered in federal judicial design. A federation’s set of lower courts, however structured, is key to the operation of the rule of law within the federation,15 and threats to lower federal or state court legitimacy can undermine the broader federal system.

In short, the institutional design decisions that structure and ensure the legitimacy of federal judicial systems are undertheorized and deserve attention. In this Article, we take a first cut at engaging with the broad questions raised in these federal contexts. How can we understand the legitimacy of a federation’s system of “judicial
federalism,”16 and what insights might it provide to constitutional design? In doing this, we draw on federal theory and comparative analysis. Our aim is to explore how the legitimacy of judicial hierarchies across a federation might intersect with the value tensions that inhere in federal constitutional design.

We begin with two threshold assumptions about design. First, we assume that, whatever structure of judicial federalism is selected, constitutional designers would seek to ensure that the judiciary will foster the nascent federation—or at least not contribute to the federation’s fracturing.17 Given this assumption, we would expect that judicial design would, within the constitutional strictures imposed, shift along that dual-integrated continuum mentioned earlier, balancing (or prioritizing) centralizing and decentralizing features depending on the needs and context of the particular constitutional system at any given moment in its history.

Second, we assume that constitutional designers would wish to ensure the legitimacy of the courts at every level of the federation. In this context, our focus is on courts’ sociological legitimacy, which is identified in the literature as “a mixture of compliance and enforcement in the face of substantive disagreement.”18 Although both the need for and the measurement of sociological legitimacy have been explored,19 the inputs to sociological legitimacy remain vague. We propose two key values as undergirding sociological judicial legitimacy in the federal context: judicial integrity and judicial autochthony.

By judicial integrity, we mean a commitment to fundamental tenets of the rule of law. Among these tenets are protections for judicial independence, predictability and consistency in legal decision-making, requirements of judicial impartiality, fair and consistent judicial processes, and the equal application of the law. Although this commitment will be shared across the federation, we assume ongoing debate as to whether its instantiation must be uniform or whether and to what extent it permits design variation.

Judicial autochthony, a term that we introduce, represents the idea that a court system is understood to be of, and in some way accountable to, the society over which it operates. Judicial autochthony thus acknowledges the need for the structural design and jurisdiction of courts to be institutions of local confidence, as well as to be locally responsive and to allow for local experimentation. It is likely to require flexibility and a variety of approaches to judicial design within the individual component states of the federation.

These values resonate with the broader federalism literature, where there is a well-theorized tension between uniformity (often through centralization, promising shared standards, effectiveness, and efficiency) and diversity (through localization, ensuring political ownership, and benefits of subsidiarity). They also dovetail in part with the ideas of independence and accountability developed in literature on judicial efficacy. We explore these areas of overlap in Part I, where we develop this conceptual framework for the federal context.

In Part I, we contextualize the two foundational assumptions above by first reviewing the existing scholarship on federal judicial design. In so doing, we focus on the dual-integrated continuum and how this design choice has been associated with broader questions of federal design and federation success. Second, we turn to judicial legitimacy and explain further the basis for our assertion that integrity and autochthony should be understood to animate sociological legitimacy in federal judicial systems. Finally, we explain how the continuum and legitimacy values interact and argue that this expanded focus on values is vital for design.

In Parts II, III, and IV, we provide examples of how key institutions and constitutional actors have attempted to manage their federation’s system of judicial federalism and the implications of these efforts for federal judicial legitimacy. We draw from the experiences of three federations: the United States, Australia, and Canada, all of which share key similarities, including preexisting states or provinces that joined together in federation, with preexisting state or provincial courts, as well as a similar common-law legal background. In each of these jurisdictions, the federal dimension of judicial design received comparatively limited consideration at the federation’s founding, with some of the core aspects of judicial federalism, including the sociological legitimacy of the federation’s courts, intentionally deferred to post-ratification institutions and actors.

Each federation has also faced challenges in constructing and maintaining judicial legitimacy. And each has drawn on different management approaches with varying success for legitimacy and distinct normative implications for design.20 We isolate and explore three core mechanisms of judicial legitimacy management: by delegation to the legislature, by implication through judicial interpretation, and by constitutional amendment. Each mechanism is associated with a primary institutional actor (or actors, in the case of amendment) and thus exhibits in practice the features and limitations of that institutional actor. Operating within the system as a whole, the institutional actors (and thus the mechanisms) necessarily interact with one another and therefore can be mutually reinforcing—or undermining. In the Parts that follow, although we have chosen to foreground a singular mechanism, we will note where and how these approaches intersect.

In Part II, we examine management by delegation, specifically, the explicit constitutional delegation in the U.S. Constitution to Congress of both the power to determine the broader structure of the judiciary (whether dual or integrated) and the power to adjust jurisdictional allocations between state and federal courts, depending on developing social, political, and economic exigencies. This U.S. case study demonstrates that power delegation can address some issues for the broader judiciary’s sociological legitimacy, whether they be anticipated or latent, in both dimensions of integrity and autochthony. Nevertheless, this approach has distinct limitations depending on the nature of the integrity concerns that are raised and ultimately proved insufficient for ensuring the legitimacy of state courts in the American context.

In Part III, we consider the management of judicial legitimacy by apex courts through judicial implication. In both the United States and Australia, challenges to judicial integrity within the state courts have come before apex courts, which have used judicial interpretation and doctrinal elaboration to construct implied federal constitutional limitations that protect and promote judicial legitimacy. In the United States, the Supreme Court has developed a robust individual-rights jurisprudence to demand integrity in state judicial processes. And in Australia, the High Court has derived implied structural limitations to ensure minimum integrity standards across state courts. These approaches have had different implications for judicial autochthony, however. Ultimately, it is unclear whether these doctrinal solutions can provide sustained overall legitimacy benefits, as the balance they strike between integrity and autochthony is unstable: the integrity protections are considered too minimal by some, while others may find local expectations of the court system frustrated by these integrity-protecting doctrines.

In Part IV, we look at efforts to amend the constitution as a solution to misalignments and dissatisfaction with a federation’s form of judicial federalism. We review the Canadian experience, particularly Québec’s claims of insufficiently autochthonous courts. This case reveals a critical challenge for constitutional amendment: frustration with judicial autochthony is likely to be a symptom of larger anxieties about the level of centralization in the federation and the scope of state (or provincial) autonomy. Addressing these concerns through amendment opens the door to a renegotiation of the federal compact itself, a threatening endeavor both to current or ongoing politics and to the stability of the federation.

In conclusion, we distill from these case studies some preliminary lessons both for constitutional designers as well as for those involved in the ongoing management of judicial federalism. Designing any federal judicial system is a deeply contextualized project, and we acknowledge that the examples with which we engage are limited in their breadth. We highlight them not to develop and present a generalized normative theory of how a federal judicial system should be structured to maximize judicial legitimacy but rather to shed light on some of the complexities of judicial federalism and federal judicial design. These case studies demonstrate that judicial federalism—just like political federalism—is an inherently dynamic concept with serious repercussions for the wider constitutional system and worthy of continued study.