William Baude on Judicial Decisions and Judicial Authority

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.

Read more at The Volokh Conspiracy