The Volokh Conspiracy

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Volokh Conspiracy

The deadly serious accusation of being a "so-called judge"


Consider two different ways that an executive official can criticize a federal court.

One is to criticize the court's decisions. That is, to say that the court got the law wrong, got the facts wrong, or generally didn't rule the right way. These criticisms can have stronger and weaker forms, as Josh Blackman discusses here, but they are relatively common. After all, every government decision to appeal a federal court ruling entails saying that the court got something wrong. (Asterisk.)

A second way is to criticize the court's authority. That is, to say that the court didn't or shouldn't have the power to decide the case at all. Again, these criticisms can take different technical forms, such as to claim a lack of jurisdiction, an improper appointment, etc. This form of criticism is much less common. After all, federal courts still have authority in many, even most, of the cases they decide, even when they decide them wrongly. As I have written, the judicial power is the power to issue judgments that bind regardless of whether they are right or wrong.

There have been occasions when officials questioned not just the courts' decisions but also their authority— Attorney General Bates's discussion of judicial authority during the Civil War may be the most important example—but this is rarer. And while the difference between the two is sometimes fuzzy, and may seem minor, it is deadly serious.

If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts—a decision that is unconstitutional if the court does indeed have authority to decide the case.

In general, I do not think we should read too much into the President's tweets (and indeed, I think our political discourse might be healthier if we did not read them at all!). But this distinction is why the epithet "so-called" in "so-called judge" raises such a red flag. Judge Robart was appointed with the advice and consent of the Senate in 2004, and I bet there is a commission on the wall of his chambers that proves that he has been vested with the judicial power. But to call him a "so-called" judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.

I hope I am reading too much into this. But I am positive that this is not the last time I will be writing about judicial decisions and judicial authority.