Judicial legitimacy and federal judicial design: Managing integrity and autochthony

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.