Federal and State Courts: Restoring a Workable Balance

Abstract

We take the role of the inferior federal courts in this country for granted. It seems to us perfectly natural to have independent and inferior federal courts below the Supreme Court, and a separate system of state courts. But in fact, our system of parallel state and federal courts is unusual in a federalism, to put it mildly. In Canada, for instance, the provincial supreme courts are named by the central government. It's as if the judges of the New York Court of Appeals or the justices of the Connecticut Supreme Court were named by the President of the United States. In Europe, there are virtually no inferior European courts. One goes from the national courts of France, Italy, Germany, and so on, directly to a European High Court, without (with the possible exception of antitrust) having any lower European courts. In other words, it's as if we had just the courts of Connecticut, New York, California, and the rest, for all cases, and then went to our High Court in Washington, D.C. Parenthetically, it is rather interesting that there's been much talk in Europe about a political Europe or an economic Europe, but little talk, until very recently, of a juridical Europe. I think that the Europeans are going to have to consider what kind of a system of European courts they will want to have as the European Union develops. There's no need for them to copy the United States or Canada—one could have any number of different arrangements. One could, for instance, have judges named locally by Italy, France, or Germany, who sit in Amsterdam, or in The Hague, or in some other place. In contrast, the American system names federal judges nationally (with some help from local senators), and these judges then sit more or less locally. The system of local and national courts can be different for different federalisms, but each federalism must think about what kind of relationship it wants to have between the local courts of the sovereign states and the national courts of the federal government. Now, let's get back on track (Justice Frankfurter's wife used to say of him that he had two problems as a public speaker: one, that he always got off track; and two, that he always got back on).