How Courts Decide Federalism Disputes: Legal Merit, Attitudinal Effects, and Strategic Considerations in the Jurisprudence of the Belgian Constitutional Court

Patricia Popelier and Samantha Bielen

Publius: The Journal of Federalism, 2019, vol. 49, issue 4, 587-616

Abstract: An urgent question in contemporary federal theory is how institutions impact upon the centralization grade of multi-tiered systems. This article focuses on constitutional courts as one of such institutions. It constructs a classification for measuring a court’s position in federalism disputes and tests hypotheses about what determines variation across decisions within one court. The case study is Belgium, as a model of contemporary fragmenting systems. We find that if the defending party is the federal government, the probability of a centralist outcome increases compared to when a sub-state government is the defendant, and vice versa. Evidence suggests that legal merit plays a role to this effect. We further find that each state reform decreases the probability of a centralist outcome. This appears to be a consequence of strategic considerations. We finally find suggestive evidence that the organization of the court does not fully succeed in playing down judges' ideological preferences.

Date: 2019
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