Centralizing and decentralizing trends on federal high courts

In our edited volume, Courts in Federal Countries: Federalists or Unitarists? (University of Toronto Press 2017), experts examine centralizing and decentralizing trends in the jurisprudence of the supreme or constitutional court (or lack thereof) in 13 federal and quasi-federal countries.

Some federation courts have contributed to gradual centralization. Ilya Somin concludes that although the U.S. Supreme Court has promoted both centralization and state autonomy at different times, on balance, it has strengthened the power of the federal government, including the power of the federal courts, at the expense of the states' powers. Nicholas Aroney likewise argues that, despite occasional variations, a centralizing pattern has been evident in Australia for almost a century. These findings confirm Daniel J. Elazar's observation in Exploring Federalism (1987) that the U.S. Supreme Court and the Australian High Court stand out as centralizers among the courts of federal countries.

Some other federal countries suggest a similar story, especially where the constitution, although federal in form, is relatively centralist in substance. Rotimi Suberu concludes that the Nigerian Supreme Court, while playing a role in moderating Nigeria's "overly centralized federal system" and helping to arbitrate conflicts, has had only a limited impact on the federal system, which remains "constitutionally skewed, politically corrupt, ethnically contentious, and, therefore, chronically fragile." Gilberto Rodrigues, Marco Lorencini, and Augusto Zimmermann say something similar: "Brazilian federalism has always been highly centralized," and "the contemporary judiciary has largely maintained this centralization." Although Canada is usually seen as having been transformed from a centralized federation into a more decentralized one, Eugénie Brouillet points to recent shifts toward more unitarist jurisprudence by Canada's Supreme Court. Elisenda Casanas Adam describes Spain's Constitutional Court as having been, historically, "fairly balanced" between expansive interpretations of the central state's competences and restrictive rulings defending powers of the 17 autonomous communities. More recently, the court has become a "polarizing centralist."

Whether centralization is a general or necessary tendency may certainly be questioned. Arthur Benz depicts the German Constitutional Court's "balanced" approach as an exception to any general tendency of federal courts to foster centralization. A similar role of securing an "equilibrium" between the orders of government and protecting constituent-government powers is ascribed to Belgium's Supreme Court by Patrick Peeters and Jens Mosselmans. José Caballero Juárez concludes that Mexico's Supreme Court has played a varied role, on one hand interpreting the Constitution in ways that provide state and local authorities with new opportunities to exercise their powers, while, on the other hand, standing atop an integrated judiciary that prevents state courts from establishing themselves as sources of legal norms having authority within their states.

Complex pictures characterize other countries. Nico Steytler explains that while South Africa's Constitutional Court has generally supported the constitutional rights of local government, it has not given full effect to the corresponding rights of provincial governments under the national Constitution, resulting in "hourglass" federalism in which the provinces are squeezed by both a dominant national government "above" and powerful metropolitan governments "below." Manish Tewari and Rekha Saxena note that while India's Supreme Court was unitarist for much of its history, it has shown signs of a federalist orientation since the early 1990s, albeit against the weight of a constitution that is mostly centralist in design and purpose.

India and South Africa also highlight a relatively new development in which local governments have been constitutionally recognized as the third order of government in some federations, as is also true in Brazil, Mexico, and Nigeria. Some other constitutions, such as those of Germany, Spain, and Switzerland, guarantee local self-government. Aside from the "hourglass" outcome in South Africa, the constitutional recognition of local government has not yet had significant impacts on the federalist or unitarist leanings of high courts.

Andreas Lienhard, Daniel Kettiger, Jacques Bühler, Loranne Mérillat, and Daniela Winkler recognize that Switzerland is a distinct case, especially because the federal Supreme Court does not exercise judicial review over federal law. Nonetheless, they point to its tendency to avoid finding cantonal legislation unconstitutional wherever possible. The general effect of the court's judgments has been to strike a "balance" between centralization and decentralization.

Another exceptional case is Ethiopia, where, according to Gedion Hessebon and Abduletif Idris, there is very little federalism-related case law, principally because the Constitution prevents the courts from playing such a role. They conclude that neither the federal nor the state judiciaries have had any significant role in shaping the development of the federal system because the House of Federation is charged with deciding constitutional disputes between the center and the states.

Although the variations noted above inhibit easy generalization, the predominant leaning of nine of the 11 high courts that exercise judicial review over federation law has been unitarist. Five of these courts-Australia, Brazil, Mexico, Nigeria, and the United States-have a marked centralist orientation. Mixed cases are Canada where the court was generally province-friendly but recently took a more centralist tack; India, where the court long had a centralist orientation but issued more decentralist rulings after 1989; South Africa, where the constitutional court has been centralist with respect to the provinces but somewhat decentralist with respect to local governments; and Spain, where the court often balanced the powers of the center and the autonomous communities but issued a notably centralist ruling in 2010 on Catalonia's statute of autonomy. The Basque Country, moreover, boycotted the court for many years. The only high courts described as being consistently balanced between unitarism and federalism are those of Belgium and Germany.

Strikingly, no contributor to our volume describes his or her federation's high court as leaning regularly in a federalist direction favoring decentralization, although Belgium's court may become a candidate for this category.

On balance, Brutus was perhaps more prescient than Alexander Hamilton about the long-term impacts of high courts on federal systems. Contrary to Hamilton's more famous claim that the Supreme Court would be the "least dangerous branch", Brutus predicted that the Court would "lean strongly in favor of the general government" and, having been established as an "independent authority", would soon be "exalted above all other power in the government".

(We thank the government of Québec and Forum of Federations for essential financial and logistical support in producing this book.)