Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony.

• Author: Appleby, Gabrielle

ARTICLE CONTENTS INTRODUCTION 2421 I. CONSTRUCTING A FEDERAL JUDICIAL SYSTEM 2430 A. Federal Success and the Dual-Integrated Continuum 2430 B. Judicial Legitimacy: Integrity 2436 and Autochthony as Sociological Inputs II. MANAGING BY DELEGATION 2443 A. Integrity Through Integration 2445 B. A Dualist Approach 2451 1. Limitations for Integrity 2451 2. Benefits for Autochthony 2455 III. MANAGING BY IMPLICATION 2456 A. Rights Limitations: The United States 2457 B. Structural Limitations: Australia 2466 1. Protecting Autochthony 2467 2. Implying Integrity 2472 IV. MANAGING BYAMENDMENT 2482 A. Canadian Judicial Federalism 2483 B. Renegotiating the Federal Balance: 2485 Quebec and Judicial Autochthony CONCLUSION 2493 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 reviews (8) 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. (14) And 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...