Despite their disagreements, judges tend to keep things pretty tame with their colleagues: differing opinions weren’t enough to stop Scalia and Ginsburg from attending (or being) the opera and all that. We have seen some spats though: VanDyke calling his co-workers possessed, hermeneutic back and forth over the word “seek,” and a taxing Supreme Court dissent that shows there was a no-holds-barred wrestling match of ideas behind the tidy 6-3. But the workplace dispute to cap them all has to be the last three years over at the United States Court of Appeals for the Federal Circuit. While the wording of the back and forth has been pretty tame — nowhere near a break in decorum like VanDyke’s unnecessary “swinging dicks” comment and his peers compelling him to be better — the nature of Judge Newman’s case has high stakes for judicial independence and constitutional interpretation.
In short, Article III judges can hold their office as long as they are in good behavior. Most read that to mean that if they commit a crime or act in ways unbecoming of a judge, Congress can oust them by vote. The Federal Circuit seems to read good behavior to mean not being too disagreeable. I say this with my conspiratorial hat on — the court’s given reason is that they accused Judge Newman of being physically and/or mentally unfit for the job and are punishing her for not being evaluated by doctors they’ve selected — but her tendency to naysay has made her stand out. When she tried to appeal her court’s decision, she was met with a shoulder shrug. Even though she raised important questions about due process, the appellate court was bound by prior precedent. But you know who isn’t? The Supreme Court! IP Watchdog has coverage:
The NCLA’s Supreme Court petition, filed Thursday night, poses two questions to the Court:
- Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” apply to ultra vires acts that exceed the scope of authority conferred by the Disability Act and the Constitution?
- Does 28 U.S.C. § 357(c)’s bar on judicial review of previously issued “orders” and “determinations” deprive a court of jurisdiction to consider claims that seek forward-looking relief to enjoin future unlawful actions?
The clarity matters for far more than just Newman’s sake. Since she’s been shadow impeached, the number of federal dissents has noticeably decreased. There’s the obvious drop you’d expect from her not penning dissents for the time she’s been on suspension, but the numbers suggest that other judges may be chilled out of breaking from their colleagues’ opinions.
Most of the recent calls to protect judges have been in response to political violence for obvious reasons, but job security matters too. Pauline Newman is one of the most respected and well-known circuit judges. If she can be sidelined like this, every other judge who loses a popularity contest risks being punished in the same way. If the Supreme Court decides to take up this case, it could bring some much-needed clarity to judicial self-policing processes and how secure their jobs really are.
NCLA Revives Newman Case Against Moore with Supreme Court Petition [IP Watchdog]
Earlier: Federal Circuit Dissents Plummet After Pauline Newman’s Ersatz Impeachment
Judicial Conduct Committee Passes Ball On Glaring Due Process Issue In Newman Case
U.S. Appeals Court Denies Pauline Newman’s Bid To Challenge Suspension
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s . He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boat builder who is learning to swim and is interested in rhetoric, Spinozists and humor. Getting back in to cycling wouldn’t hurt either. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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