When, if ever, should lower-court judges criticize decisions of the higher courts that bind them? Can they do it in their reasons, whether speaking for their court or only for themselves? Judicature has published a short but thoughtful exchange on these questions between Orin Kerr and Michael Dorf. In a nutshell, Professor Kerr argues that such criticism is (almost?) never appropriate in judicial opinions; it belongs in op-eds and scholarly articles. Professor Dorf, by contrast, sees a place for it, if only a limited one. My own instincts are on Professor Dorf’s side.
For Professor Kerr, judicial opinions “receive respect not because they’re wise or well-reasoned. Some opinions are, and some opinions aren’t. Rather, judicial opinions receive respect because they are legally operative documents issued by judges with the power to issue them”. (84) It follows that
When you write a judicial opinion, you should limit yourself to what you have formal authority to decide. You should explain why you voted as you did in the case before you, as every legal opinion does. But judges shouldn’t also use legal opinions to pontificate about other views they have outside of the case and outside their authority. (84)
Since it is not the job of lower court judges to criticize their higher-ups, and since such criticism is legally inoperative, it should be saved for other venues: “Keeping your exercises of formal authority separate from your views of legal questions outside that authority helps maintain the legitimacy of the authority you exercise.” (85)
This is especially so for those views which a judge held prior to or would hold irrespective of his or her judicial office. Perhaps there is a place for judges criticizing “a [binding] precedent … when the judge’s basis for that opinion is a special insight, gained only in a judicial capacity, into how the precedent is working”. (88) But even then, the lower court judge “can draw attention” to the problem “without taking a view on whether” the higher court should reverse itself. (87)
Meanwhile, Professor Dorf’s position is that judicial criticism of binding authority ― not just higher-court precedent but also legislation ― is appropriate in a wider range of circumstances. For him, it is important that “in a well-functioning judicial hierarchy, information flows both ways. Lower court judges have knowledge and views that can and should usefully inform judges on higher courts”. (85) If lower court judges “spot a defect — a rule that misfires or that ought to but does not contain an exception” (86), for example because “a statute or opinion of a higher court [is] be based on a seemingly reasonable premise that proves false in practice” (86) ―, they might try to finesse or work around that rule. But that’s not always possible, and not necessarily appropriate. Short of refusing to follow the law (and perhaps resigning to make the point), their only other option is to criticize it in an opinion applying it.
Professor Dorf agrees that this should not happen very often. Criticism on “moral” grounds should be especially rare. Yet since “law often incorporates moral judgments, there should be room for an occasional statement by lower court judges that the precedent they must apply is wrong and thus should be reconsidered”. (86) And, regardless of the reason for it, criticism can be offered in a statement of reasons; indeed “it is hardly obvious that doing so outside of the context of a concrete case is the least controversial way to do so”. (87)
For what it’s worth, my view is closer to Professor Dorf’s; in some ways, I might go further than him. Let me begin, though, with one point he raises without developing it, and which makes me uneasy.
It is judicial criticism of legislation. As I have argued before, I think courts (including apex courts) should mostly try to avoid giving their opinions on legislation, whether to praise or to criticize it. It is not their constitutional role ― except in a constitutional challenge to the legislation’s validity or application, and even then the courts ought to focus on legal issues. Commentary on legislation is, inevitably, bound up with policy issues that are outside of the courts’ purview, and it is just as inevitably at risk of being recycled by politicians themselves, at the risk of compromising the public’s perception of the courts’ impartiality. I think courts can comment on technical issues with legislation where it fails to provide sufficient guidance to the subject and to the courts themselves. But this is probably a narrower view of permissible criticism than Professor Dorf would allow.
That said, I think that lower-court criticism of higher courts’ jurisprudence is a different matter. Although the courts stand in a hierarchical relationship to one another, they are fundamentally engaged in the same enterprise of saying what the law is. In this exercise, as Justice Jackson famously put it, higher courts “are not final because [they] are infallible, but [they] are infallible only because [they] are final”. They can err, and I don’t think that it is constitutionally objectionable for their colleagues to say so ― provided, of course, that they still respect their subordinate role in the judicial hierarchy and apply binding precedent until it is overturned. (Of course, in the Canadian context, there is an exception even to this principle, set out by the Supreme Court in Canada (Attorney General) v Bedford, 2013 SCC 72,  3 SCR 1101. In my view that was a mistake.)
Sure, it’s probably a good idea for judges to be, well, judicious about when to speak out. Their main task is to decide disputes, not to be legal commentators. But I doubt there is really much danger of this happening. Lower-court judges are simply too busy to moonlight as opinionated bloggers. Conversely, though, I might actually be more uneasy with judicial commentary on the state of the law expressed either without reference to the problems it causes in a particular case or with reference to a past decision. I think it is a valuable principle that reasons for judgment ought to speak for themselves.
So when judges consider that the issue is important enough, and that it arises starkly enough in a case before them, I think they can ― and perhaps ought to ― take the opportunity to speak out. And I wouldn’t limit this to either cases of the binding precedent “misfiring”, or being based on a mistaken premise, or even particularly strong moral disagreement. I think that, just as importantly, it can be appropriate for a lower court judge to say that a higher court’s decision is legally wrong ― that it does not fit with other precedents or with the legal landscape as a whole. It is the Supreme Court’s job to sort out these conflicts and contradictions, which are to some degree inevitable in a dynamic legal system. But lower courts can contribute to the law working itself pure by pointing out impurities ― even when it is the higher court that caused them to exist.
Ultimately, I disagree with Professor Kerr’s view of judicial opinions. To repeat, he says that they “receive respect not because they’re wise or well-reasoned”, which they need not be, but “because they are legally operative documents issued by judges with the power to issue them”. I think this confuses respect and authority. A judgment’s binding authority is a product of the law alone. But the respect due to it is indeed a function of its reasoning. A poorly reasoned judgment is still binding on the parties, and its ratio sets a precedent that binds courts below that by which it was rendered. But it doesn’t follow that this judgment is automatically entitled to respect ― that it ought to be regarded as deserving to be part of the law. As a result, it is not improper for a court bound by that judgment to express reservations about it while still applying it: in doing so, the lower court defers to the higher court’s authority, but withholds the respect to which it is not entitled.
That’s my two cents, anyway. Again, the discussion between Professors Kerr and Dorf is worth your time.