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 RESCUING JUDICIAL
ACCOUNTABILITY FROM THE REALM
OF POLITICAL RHETORIC

Charles GardnerGeyht

INTRODUCTION

Attacks on judges have come and gone at generational intervals

since the founding of the nation. Since the latest cycle of anticourt
sentiment erupted in the mid-nineties, law school symposia on judi-
cial independence have proliferated like rabbits.' As a result, judicial
independence has been explored as never before and its contours
mapped with considerable care.
In the course of this cartographic exercise, judicial accountability
has often been identified as a critical component of the judicial inde-
pendence landscape; thus, for example, Professor Stephen Burbank
has characterized judicial independence and accountability as "differ-
ent sides of the same coin."' Funny thing about coins, though. Pretty
much everyone knows that F.D.R. is on the heads side of a dime just
as most of us who study the courts now know the ins and outs of judi-
cial independence. But the dime's tails side doesn't get as much atten-
tion: "a torch and stuff' may be the most that many of us can recall
without looking, and our understanding of judicial accountability and
its limits is comparably limited.

t Professor of Law, Indiana University. I would like to thank Steve Burbank and Alan
Tarr for their comments on earlier drafts.
See, e.g., Symposium, FederalJudicialIndependence, 46 MERCER L. REV. 637 (1995);
Symposium, Independence of the Judiciary, 38 U. RICH. L. REV. 565 (2004); Symposium,
Judicial Independence, 25 HOFSTRA L. REV. 703 (1997); Symposium, Judicial Independence
and Accountability, 72 S.CAL. L. REV. 311 (1999); Symposium, JudicialReview and Judicial
Independence: The Appropriate Role of the Judiciary, 14 GA. ST. U. L. REV. 737 (1998); Sym-
posium, Perspectiveson Judicial Independence, 64 OHIO ST. L.J. 1 (2003); Symposium, Special
Series: Judicial Independence, 29 FORDHAM URB. L.J. 791 (2002).
2 Stephen B. Burbank, The Architecture of Judicial Independence, 72 S.CAL. L. REV.
315, 339 (1999).
912 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

The peril of leaving judicial accountability ill-defined is that it can

be co-opted and misused more easily. Events surrounding the sad and
peculiar case of Teresa Schiavo illustrate this point.
In 1990, Ms. Schiavo suffered a cardiac arrest, which left her in
what most doctors characterized as a persistent vegetative state.3 In
1998, Ms. Schiavo's husband asked a Florida state court for permis-
sion to withdraw her feeding tube, and in 2000 the court agreed, over
the objection of Ms. Schiavo's parents. After appeals failed and the
tube was removed in 2003, Christian conservatives swiftly and suc-
cessfully lobbied the Florida legislature to pass a law empowering
Governor Jeb Bush to order Ms. Schiavo's feeding tube reinserted,
which he did, only to have a court invalidate the law in 2004. In 2005,
the tube was removed again, and the conservative Christian lobby
raced to Washington, where it urged Congress to pass a law giving a
federal judge the authority to hear the Schiavo case anew. Congress
quickly obliged with special legislation, signed into law by President
Bush, bestowing jurisdiction on a Florida district court to review de
novo all federal questions presented by the Schiavo case. Without
issuing an interim order to reinsert Ms. Schiavo's feeding tube, the
federal judge to whom the case was assigned swiftly reached the same
conclusion as his state counterpart, the United States Court of Ap-
peals for the Eleventh Circuit affirmed, and Ms. Schiavo passed away
several days later.
Conservative Republican sponsors of the legislation were furious
at the federal judges involved and offered a rainbow of proposals to
curb the courts: impeach the miscreants, strip their jurisdiction, slash
their budgets, disestablish their offices, and deprive Democrats of the
power to filibuster nominees of a President committed to appointing
"common sense judges who understand that our rights are derived
from God.",4 Each of these proposals was advanced in the name of
promoting judicial accountability.
In the aftermath of the Schiavo legislation, House Judiciary Com-
mittee Chair James Sensenbrenner struck a conciliatory tone, declar-
ing that "while [he] vociferously disagree[d] with the Federal Judici-
ary's handling of this case, that does not mean that Congress should
respond by attempting to neuter the courts," and shared the view of a
conservative commentator that Congress should not "regulate judicial

3 For a summary of the facts of the Schiavo matter as described in this paragraph, see Ar-
ian Campo-Flores, The Legacy of Terri Schiavo, NEWSWEEK, Apr. 4, 2005, at 26.
4 Sani Dolbee, FrontlineExplores Bush's Religious Bent, THE SAN DIEGO UNION TRIB.,
Apr. 29, 2004, at El (quoting President Bush). For a summary of post-Schiavo threats, see Carl
Hulse & David D. Kirkpatrick, DeLay Says Congress Lets Courts 'Run Amok,' N.Y. TIMES,
Apr. 8, 2005, at A21.
 2006] RESCUING JUDICIAL ACCOUNTABILITY

decision-making through such extreme measures as retroactively re-

moving lifetime appointees through impeachment." 5 Even so, he con-
tinued:
This does not mean that judges should not be punished in
some capacity for behavior that does not rise to the level of
impeachable conduct. I think we can all agree that public ser-
vants, especially those with life tenure, must be accountable
for their actions to co-equal branches of government as well
as the American people. The appropriate questions are how
do we punish and who does the punishing.6
Against this backdrop, "judicial accountability" can be miscon-
strued as code for the proposition that judicial independence is anath-
ema and must be replaced with mechanisms for judicial punishment
and control. The 2003 Report of the American Bar Association's
Commission on the 21st Century Judiciary begins with a statement of
the "enduring principles" that "ought to guide the twenty-first century
judiciary." 7 After declaring that judges should uphold the rule of law,
be independent, be impartial, possess the appropriate temperament,
and so on, the Commission-which I served on as Reporter-
included as its eighth and final principle that "Judges should be con-
strained to perform their duties in a manner that justifies public faith
and confidence in the courts." 8 This is, of course, simply an elliptical
way of saying that judges should be accountable. But as Commission
draftsman, I was instructed not to use the "A" word in the caption. In
the Commission's view, "accountability" had been captured by forces
hostile to judicial independence and had acquired a secondary mean-
ing antithetical to the principles that the Commission was seeking to
articulate. Although the Commission's underlying explanation for this

5 The Honorable F. James Sensenbrenner, Jr., Zale Lecture in Public Policy, Stanford
Univ. (May 9, 2005), (transcript available at http://judiciary.house.gov/medialpdfs/stanford
judgesspeechpressversion505.pdf).
6 Id. It is not entirely clear how Mr. Sensenbrenner thought that the other branches of
government or the American people should punish judges for their decision-making. He went on
to discuss the judicial discipline statute, which authorizes judges to discipline their own for
certain forms of misconduct. But the discipline statute is intra-judicial, and explicitly exempts
complaints about the merits of judicial decisions from its scope. Elsewhere in his speech,
Sensenbrenner proposed to establish an Inspector General for the federal judiciary to promote
fiscal accountability; for a legislator casting about for means short of impeachment to "punish"
judges for their decisions, the creation of a new Inspector General's office would be a felicitous
development.
7 AMERICAN BAR ASSOCIATION, JUSTICE IN JEOPARDY: REPORT OF THE COMMISSION ON
THE 21ST CENTURYJUDICIARY 5 (2003) [hereinafter JUSTICE IN JEOPARDY].
8 Id. at 12.
 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

eighth principle mentioned accountability, it did so in a highly defen-

sive way:
Judicial independence, then, must be tempered by judicial ac-
countability. We are mindful that the phrase "judicial ac-
countability" is subject to misuse. It can be employed in the
service of those who would, in the name of "judicial account-
ability," obliterate judicial independence and the rule of law
altogether by intimidating judges into contorting the law to
reach results that are popular with temporary majorities of the
public. In our view, however, accountability should be de-
fined more narrowly, to serve the principles of a good judicial
system that we enumerate here.9
This article takes a closer look at the tails-side of the judicial
independence-judicial accountability coin by constructing a judicial
accountability taxonomy, and in so doing seeks to rescue judicial
accountability from the realm of political rhetoric. The task of
unpacking judicial accountability is complicated by the fact that
accountability-like independence-is not monolithic. The
effectiveness, desirability, and even the propriety of various
mechanisms for promoting judicial accountability can be context-
dependant. What works for federal judges may not work for their
counterparts in the states; what is true for Texas may not be true for
Wisconsin; and what is appropriate for trial courts may not be
appropriate for courts of appeal. One must therefore avoid
overgeneralization. At the same time, I worry about losing the forest
for the trees, and see value in stepping back from specifics to consider
accountability on a more theoretical plane-hence, this article.
I begin by defining judicial accountability with a brief discussion
of the purposes that it serves, before subdividing it into three discrete
genera: institutional accountability, behavioral accountability, and
decisional accountability, each of which may be subdivided into sev-
eral species. This exercise reveals that in the judicial accountability
family, there is but one discrete sub-species, situated in the decisional
accountability genus, that does not further accountability's proper
purpose and is therefore conceptually problematic: direct political
accountability for competent and honest judicial decision-making
error.
In the ongoing judicial accountability frenzy, court critics insist
that they harbor no desire to jeopardize judicial independence by pun-

9 Id.
 20061 RESCUING JUDICIAL ACCOUNTABILITY

ishing judges for honest mistakes or disagreements; rather, they re-

gard the decisions they criticize as reckless or deliberate usurpations
of power, in which the judges have willfully disregarded the law and
imposed their own personal values or political preferences. Critics of
the critics, however, argue that court-bashers are simply seeking to
intimidate judges into contorting the law to reach outcomes the critics
favor. The critical question, then, becomes one of classification: how
does one distinguish simple disagreements as to applicable facts and
law, for which direct political accountability is inappropriate, from
deliberate usurpations of political power, which are properly subject
to sanction?
To no small extent, the issue turns on the judge's state of mind: if a
decision was erroneous, was the error an honest mistake or a disin-
genuous power-grab? Analogizing to First Amendment limitations on
defamation liability for public figures, I argue that in cases of deci-
sion-making error, the presumption should be that the judge in ques-
tion was competent and honest, absent direct evidence to the contrary.
This is, in fact, the approach that Congress has adopted in the context
of judicial impeachments. Although the House was willing to infer a
bad motive from judicial error alone in several early impeachment
proceedings, the Senate (and ultimately the House as well) insisted
that there be extrinsic evidence of mens rea before a judge could be
removed for a usurpation of power. Although such a presumption
complicates legislators' ability to punish judges for "legislating from
the bench," "judicial activism," "usurpations of power," or other fash-
ionable phrases of the day, it strikes the optimal balance between ju-
dicial independence and accountability.
THE OBJECTIVES OF JUDICIAL ACCOUNTABILITY
Judicial independence, correctly understood, is not an end in itself.
Although it is sometimes characterized as such in the flowery
speeches of public officials, most thoughtful scholars recognize that
judicial independence is an instrumental value-a means to achieve
other ends.' 0 As an instrumental value, judicial independence has
limits, defined by the purposes it serves. Disagreement persists as to
what those purposes are, but most would accept some variation on the
theme that judicial independence enables judges to follow the facts
and law without fear or favor, so as to uphold the rule of law, pre-
serve the separation of governmental powers, and promote due proc-

10See, e.g., Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independ-
ence, in JUDICIAL INDEPENDENCE AT THE CROSSROADS 9, 11-14 (Stephen B. Burbank & Barry
Friedman eds., 2002).
 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

ess." Given these objectives, one may fairly conclude that judges
who are subject to intimidation from outsiders interested in the out-
comes of cases the judges decide lack the independence necessary to
follow the facts and law. At the same time, one may just as fairly
conclude that judges who are so independent that they can disregard
the law altogether without fear of reprisal likewise undermine the rule
of law values that judicial independence is supposed to further.
Judicial accountability is yin to the judicial independence yang.
Although some trumpet judicial accountability as if it were an end in
itself, accountability-like independence-is better characterized as
an instrumental value that promotes three discrete ends: the rule of
law, public confidence in the courts, and institutional responsibility.
First, judicial accountability promotes the rule of law by deterring
conduct that could compromise judicial independence, integrity, and
impartiality. To say that judicial accountability promotes judicial
independence seems counterintuitive. Accountability does, after all,
diminish a judge's literal independence: the judge who is made
accountable to an impeachment process, for example, loses her
"independence" to take bribes with impunity. But properly employed,
accountability merely diminishes a judge's freedom to make herself
dependant on inappropriate internal or external influences that could
interfere with her capacity to follow the rule of law. By deterring
bribery, favoritism, bias and so on, accountability promotes the kind
of independence needed for judges to adhere to the rule of law.
Second, judicial accountability promotes public confidence in
judges and the judiciary. Regardless of whether independent judges
follow the law, if the public's perception is otherwise, reforms calcu-
lated to render judicial decision-making subject to popular or political
branch control are sure to follow, to the ultimate detriment of the rule
of law itself. A system of judicial accountability that reassures a
sometimes-skeptical public that judges are doing their jobs properly
and yet respects the judiciary's independence can forestall resort to
more draconian and counter-productive forms of court control.

11Id. at 14; see also Calvin R. Massey, Rule of Law and the Age of Aquarius, 41
HASTINGS L.J. 757, 760 (1990) (book review) (quoting Geoffrey de Q. Walker for the proposi-
tion that "[a]n independent judiciary is an indispensable requirement of the rule of law");
L. Ralph Mecham, Introduction to Mercer Law Review Symposium on FederalJudicial Inde-
pendence, 46 MERCER L. REv. 637, 638 (1995) (explaining that judicial independence is a
"cornerstone of a free society and the rule of law"); William C. Whitford, The Rule of Law,
2000 Wis. L. REv. 723, 738 (describing judicial independence as "widely seen as critically
necessary to the effective implementation" of a rule of law); Frances Kahn Zemans, The Ac-
countable Judge: Guardian of Judicial Independence, 72 S. CAL. L. REv. 625, 631 (1999)
(noting that "an independent judiciary" is a "necessity" for the rule of law).
 2006] RESCUING JUDICIAL A CCOUNTABILITY

Third, judicial accountability promotes institutional responsibility

by rendering the judiciary responsive to the needs of the public it
serves as a separate branch of government. The public is entitled to
courts that administer justice effectively, efficiently, and expedi-
tiously. The judiciary spends taxpayer dollars just like the other
branches of government and, just like the other branches, the judici-
ary should be subject to regulation aimed at making its operations
more streamlined and cost effective.

JUDICIAL ACCOUNTABILITY GENERA

Devising a judicial accountability taxonomy could proceed in any
of several ways. One way would be to subdivide accountability with
reference to the individuals or entities to which judges are account-
able: legislators, governors and presidents, fellow judges, the elector-
ate, prosecutors, judicial conduct organizations, and so on. Another
way would be to employ the various accountability-promoting de-
vices as an organizing principle: impeachment, elections, discipline,
budgetary oversight, etc. My goal here, however, is to distinguish
beneficial or at least benign forms of accountability from those that
are more problematic, when analyzed in light of the three aforemen-
tioned purposes accountability serves. To do that most effectively, it
is best to subdivide accountability into the three forms of judicial
conduct that accountability mechanisms target: (1) the conduct of
judges collectively as a branch of government (institutional account-
ability); (2) the behavior of judges extraneous to the merits of judicial
decisions (behavioral accountability); and (3) the rulings that judges
make (decisional accountability). 12

InstitutionalAccountability

Institutional accountability concerns the accountability of judges,

collectively, for the performance of the judiciary as a separate and
independent branch of government. To ensure that courts administer
justice wisely and well, the judiciary is subject to two discrete species
of institutional accountability. First, the judiciary is accountable for
its spending: Congress and state legislatures control the size of their
respective judiciaries' budgets and, with only isolated exceptions (in

12 In a short piece written several years ago, Judge Wendell Griffen proposed to subdivide

judicial accountability along comparable lines. See Wendell L. Griffen, Comment, Judicial
Accountabilityand Discipline, 61 LAw & CONTEMP. PROBS. 75, 75 (1998) (dividing the issue of
judicial accountability into the three levels of "political accountability, decisional accountabil-
ity, and behavioral accountability").
918 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

nine states with judicial salary commissions that have the authority to
make binding salary determinations), decide whether and when to
adjust judicial salaries upward.13 Second, the federal judiciary is ac-
countable for its operations both to Congress, which is authorized to
regulate court size, structure, practice, procedure, and jurisdiction,
and to the judiciary itself, insofar as Congress has delegated to the
courts the authority to self-administer and promulgate its own rules of
practice and procedure.
Of the three objectives of accountability discussed earlier (promot-
ing the rule of law, public confidence, and institutional responsibil-
ity), institutional accountability is most closely connected to the third,
institutional responsibility, by rendering the judiciary responsive to
the needs of the public it serves as a separate branch of government. It
can, however, serve all three objectives. For example, in 1891, when
Congress restructured the judiciary to establish circuit courts of ap-
peals, it rendered the judiciary, as a branch, more responsive to the
public need for greater access to appellate courts. But it also provided
a more effective system to correct district court errors (thereby pro-
moting the rule of law) and addressed growing concerns that district
judges had become too despotic (so restoring public confidence).
It bears emphasis that the three genera of judicial accountability
discussed here are defined and circumscribed with reference to the
conduct each seeks to control. Thus, "institutional accountability" is
limited to measures aimed at making the judiciary answerable for, or
otherwise improving, its administration as a branch. If devices
typically aimed at promoting institutional accountability-such as
congressional oversight of court budgets or jurisdiction-are
deployed instead to control judicial decision-making on specific
issues, they are better classified in the context of decisional
accountability mechanisms.
Institutional accountability has its limits. Among the states, many
constitutions create explicitly independent judiciaries with powers of
self-administration that enable state courts to resist encroachments
from their legislatures to a greater extent than their federal court
counterparts. 1 4 In the federal system, the scope of legislative power is
quite broad but still subject to several limits. First, the U.S. Constitu-

13 JUSTICE INJEOPARDY, supra note 7, at 85 (discussing the twenty states with judicial sal-
ary commissions, nine of which have the authority to issue binding salary determinations absent
formal legislative branch disapproval).
14 Michael L. Buenger, Of Money and JudicialIndependence: Can Inherent Powers Pro-
tect State Courts in Tough Fiscal Times?, 92 KY. L.J. 979, 1026 (2004) ("The revision of judi-
cial articles over the last fifty years illustrates the shift from relying on the legislature for the
institutional structure and authority of courts, toward anchoring such matters directly in the
constitution [sic] and the body of the judiciary itself.").
20061 RESCUING JUDICIAL ACCOUNTABILITY

tion directs that judicial power be vested in a Supreme Court, which

deprives Congress of the authority to disestablish the Supreme Court
directly, and perhaps indirectly as well, by crippling its ability to
function. 15 Second, as to the lower courts, the Constitution vests Con-
gress with the discretion to establish (and by negative implication
disestablish) inferior courts; but even then, Article Ell delegates "The
judicial Power" to the Supreme and inferior courts alone. 16 Once Con-
gress establishes inferior courts vested with Article 111powers, it may
not regulate those courts in ways that deprive them of their constitu-
tional monopoly on judicial power.17 Third, the judiciary's status as a
separate and independent branch may confer some measure of inher-
ent authority to resist encroachments from the political branches-an
argument that has prevailed in state systems. 18 Fourth, governmental
actions implementing institutional accountability measures are subject
to the same constitutional limitations (for example, the Equal Protec-
tion and Due Process Clauses) as any other governmental action.' 9
That said, Congress has traditionally afforded the courts considerably
greater branch independence than the text of the Constitution requires
and has rarely tested the limits of its power to hold the judiciary ac-
countable as an institution. As a consequence, the limits enumerated
here remain ill-defined and largely speculative.2 °

BehavioralAccountability

Behavioral accountability holds judges answerable for conduct

(extraneous to the merits of their rulings in specific cases) that could
reflect adversely on their integrity, independence, or impartiality. To
the extent that judges are held responsible for conduct on or off the
bench that compromises their capacity to decide cases properly, it
furthers both the rule of law and the public confidence objectives of
accountability.
There are at least two species of behavioral accountability: judicial
and extrajudicial. The judicial aspect of behavioral accountability
holds judges accountable for conduct occurring on the job. Judges
who engage in ex parte communications, hear cases when their impar-

is U.S. Const. art. m, § 1.

16 U.S. Const. art. M, § 2.
17 See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (invalidating legislation
reopening final judgments because it infringed on judicial power).
1SBuenger, supra note 14 (summarizing cases construing inherent powers of state courts
in the context of court-funding battles).
19Martin H. Redish, Federal Judicial Independence: Constitutional and Political Per-
spectives, 46 MERCER L. REv. 697, 703-04 (1995).
20 CHARLES GARDNER GEYH, WHEN COURTS AND CONGRESS COLLIDE (2006).
920 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

tiality is in doubt, are discourteous, exhibit racial bias, or take public

positions on proceedings pending before them, jeopardize the integ-
rity of the judicial process to the detriment of their independence and
impartiality (even if their misconduct is not manifested in a judicial
decision).
The extrajudicial component of behavioral accountability targets
conduct arising off the bench that diminishes a judge's fitness for
judicial office. Some problems can arise in the course of a judge's
private life. If, for example, a judge solicits or accepts gifts from
prospective litigants, it could compromise her impartiality. Other
problems arise in the context of professional, civic, charitable, and
political activities. Ifjudges moonlight as private practitioners, their
responsibilities as lawyer-advocates could distract them from their
judicial duties and undermine their credibility as neutral magistrates;
if judges solicit funds for charities, it could lead them to trade on the
power and influence of their stations for the benefit of private
organizations; and if judges become political party leaders, it could
create a tension between their partisan obligations and their duty as
judges to follow the law.
Among the states, behavioral accountability is predominately regu-
lated by court-promulgated codes based on the American Bar Asso-
ciation's Model Code of Judicial Conduct;2' although impeachment,
criminal prosecution, and other accountability-promoting devices can
also play a role.22 Judges are answerable to judicial conduct commis-
sions that enforce their respective codes.23 At the federal level, the
Judicial Conference of the United States has adopted its own variation
of the Model Code of Judicial Conduct, the Code of Conduct for
United States Judges, but uses its Code primarily for advisory pur-
poses, rather than as a tool for enforcement. 24 The federal judicial
discipline statute authorizes the judiciary to discipline judges for con-
duct "prejudicial to the effective and expeditious administration of the
business of the courts. 25 The statute excludes conduct relating to the
merits of a judicial decision from its scope, effectively limiting its
purpose to promoting behavioral accountability.26 Although the vague

21See MODEL CODE OF JUDICIAL CONDUCT (2004).

22For a summary of other mechanisms for promoting judicial accountability, see Charles
Gardner Geyh,The Elastic Nature of JudicialIndependence and JudicialAccountability, in THE
IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE 167 (7th ed. 2002).
23 JEFFREY M. SHAMAN, STEPHEN LuBET & JAMES J. ALFINI, JUDICIAL CONDUCT AND
ETHICS 6-9; 433-94 (3d ed. 2000).
24 CODE OF CONDUCT FOR UNITED STATES JUDGES (Judicial Conference of the U.S.
2000), available at http:// www.uscourts.gov/guidelvol2/chl .html (last visited Feb. 15, 2005).
25 28 U.S.C. § 351 (Supp. 1 2002).
26Id.
2006] RESCUING JUDICIAL ACCOUNTABILITY

language of the statute might logically benefit from the more detailed
guidance of the Code of Conduct, the federal courts have eschewed
that approach in favor of regulating conduct under the general statu-
tory standard, and cross-referencing applicable sections of the Code
only rarely.27
Like institutional accountability, behavioral accountability has its
limits. Congress and state legislatures may impeach and remove
judges for malfeasance. Impeachment is, however, an exceedingly
cumbersome process, and is available to redress only the most serious
forms of misconduct, on the order of "Treason, Bribery, and other
high Crimes and Misdemeanors. ,,28 To promote behavioral account-
ability for lesser forms of misconduct, Congress has used its regula-
tory authority over the courts to establish mechanisms for judicial
discipline and disqualification, but Congress arguably lacks the power
to enforce those mechanisms itself, and so has delegated that task to
the judiciary. 29 At the state level, the final appeal from decisions of
judicial conduct organizations are ordinarily heard by the state su-
preme court (in forty-one states) or a court specially designated to
hear disciplinary matters (in nine states), which insulates judicial dis-
cipline from legislative branch control. 30 The judiciary, in turn, has
limits on its enforcement authority too. Although state judiciaries are
typically authorized to remove judges for misconduct, the federal
judiciary is not.3' Moreover, disciplinary actions of state and federal
judiciaries are subject to the strictures of their constitutions, such as

27 Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability,

and Judicial Independence Under the Federal Judicial Conduct and DisabilityAct of 1980, 142
U. PA. L. Rev. 25, 84 (1993) (reporting that only 3 percent of judicial orders in disciplinary
cases cite to the Code of Conductfor United States Judges).
28 U.S. Const. art. IH,§ 4.
29 Peter M. Shane, Who May Discipline or Remove Federal Judges? A Constitutional
Analysis, 142 U. PA. L. REV. 209 (1993). Other commentators go further still, arguing that
Congress lacks the authority to subject Article I judges to discipline at the hands of other
Article III judges; therefore, the federal judicial discipline statute is unconstitutional. See, e.g.,
Martin H. Redish, Judicial Discipline, Judicial Independence, and the Constitution: A Textual
and StructuralAnalysis, 72 S. CAL. L. REV. 673 (1999). But see NAT'L COMM'N ON JUDICIAL
DISCIPLINE AND REMOVAL, REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE &
REMOVAL 14-17 (1993) (concluding that the Judicial Councils Reform and Judicial Conduct
and Disability Act is constitutional).
30 See SHAMAN, LUBET & ALFINI, supra note 23, at 433-34.
31 Id. at 437 (discussing removal as a sanction available to state judicial conduct organiza-
tions). In the federal system, the discipline statute does not authorize the judiciary to remove one
of its own. 28 U.S.C. § 354(3)(A) (2004). Moreover, there is considerable doubt as to whether
such removal authority would be constitutional. See Shane, supra note 29, at 239 ("The Su-
preme Court might well regard the constitutionally explicit singling out of removal and disquali-
fication as consequences of impeachment as setting categorical limits to those sanctions that
might be imposed through other means.").
 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

due process constraints and First Amendment limits on the regulation

of judicial speech.32

DecisionalAccountability

Decisional accountability holds judges answerable for their judi-

cial decisions. By providing a means to correct and discourage judi-
cial error, decisional accountability can further both the rule of law
and public confidence objectives of judicial accountability.
Decisional accountability targets two species of judicial error: in-
tentional and unintentional. Any number of motives may underlie
intentional errors, including financial gain, favoritism, power-lust,
and political, religious, racial, gender, or cultural bias, to name a few.
It is hard to quarrel with the notion that judges should be accountable
for intentional decision-making error-the judge who makes such
errors has knowingly33
violated her oath of office, in which she swore
to uphold the law.
There are, however, exceptional circumstances that lead judges to
make intentional decision-making errors. In a widely publicized case
decided in the late 1990s, for example, California Court of Appeals
Judge Anthony Kline openly disregarded the controlling precedent of
the California Supreme Court. His dissent from the appellate panel's
ruling argued that the Supreme Court's decision was wrong and that
in the unusual context of that case, the only circumstance under which
the Supreme Court would have an opportunity to reconsider its earlier
decision would be on an appeal from a ruling that rejected the con-
trolling precedent. 34 Kline wrote, "There are rare instances in which a
judge of an inferior court can properly refuse to acquiesce in the
precedent established by a court of superior jurisdiction .... This is,
for me, such an instance. 3 5 Kline's conduct was subsequently inves-
tigated by his state's judicial conduct commission, which, the judge's
defenders argued, intruded upon his independence. 36
A judge disgruntled by controlling precedent may almost always
call her objections to the attention of a higher court simply by raising
them in an opinion that grudgingly follows the offending law-
objections that the losing party may then raise in its argument for
32 See, e.g., Republican Party of Minn. v. White, 536 U.S. 765 (2002) (invalidating certain
Code-imposed restrictions on judicial campaign speech).
33 See 28 U.S.C. § 453 (codifying the judicial oath).
34 For a discussion of the case and its background, see Sambhav N. Sankar, Comment,
Disciplining the Professional Judge, 88 CAL. L. REV. 1233, 1233-35 (2000).
35Morrow v. Hood Commc'ns, Inc., 69 Cal. Rptr. 2d 489, 490-91 (Cal. Ct. App. 1997)
(Kline, J., dissenting).
36Sankar, supra note 34, at 1234-35.
2006] RESCUING JUDICIAL ACCOUNTABILITY

reversal before a higher court. Insofar as that option was unavailable

to Kline, his case was unique; setting aberrational exceptions to one
side, however, judicial defiance of the law is otherwise unacceptable.
Yes, the circumstances under which judges disregard applicable law
may be germane to assessing whether scarce disciplinary resources
are better allocated elsewhere, and what (if any) sanctions should be
imposed. For that reason, well-intentioned defiance (as in this exam-
ple, defiance aimed at setting the law right) may not be worth pursu-
ing. But devotees of civil disobedience the world over understand that
when they intentionally violate a law-even when their motives are
pure and the law is unjust-they are subject to sanctions. That should
be especially true of judges who, by virtue of taking an oath to uphold
the law, have foresworn law reform by unlawful means.
Two remedies for intentional error are worth mentioning. First, the
Model Code of Judicial Conduct requires that "[a] judge shall be
faithful to the law, 37 and subjects judges who willfully disregard the
law to discipline-although in the federal system, the discipline stat-
ute immunizes judges from discipline for matters related to the merits
of a dispute.38 Second, judges can be impeached. As a conceptual
matter, these intentional derelictions of duty are fairly characterized
as violations of the public trust (to borrow Alexander Hamilton's
phrase) that can rise to the level of impeachable offenses-the judge
who knowingly abandons her obligation to follow the law for per-
sonal gain is corrupt, regardless of whether she gains by taking bribes,
helping39family or friends, usurping power, or furthering pet political
causes.
When it comes to unintentional decisional errors, the Code of Ju-
dicial Conduct directs judges to "maintain professional competence"
in the law and exposes incompetence to discipline.40 In practice, im-
posing sanctions for incompetence can be problematic in close cases
because one person's error can be another's ineptitude. Because of
this difficulty, state enforcement actions are usually limited to ex-
treme cases. On a conceptual level, however, holding judges answer-
able for incompetence is defensible insofar as the judge who, through
indifference or incapacity, does not maintain minimum standards of
competence (which can manifest itself in decision-making), compro-
mises the effective administration of justice, disserves the rule of law,
and undermines public confidence in the courts.

37 MODEL CODE OF JUDICIAL CONDUCT Canon 3B(2) (2004).

38 28 U.S.C. § 352(b)(1)(A)(ii).
39 See THE FEDERALIST No. 65, at 396 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
40 MODEL CODE OF JUDICIAL CONDUCT Canon 3B(2) (2004).
 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

For the most part, however, unintentional decisional error is attrib-

utable not to incompetence but to honest mistakes made in the course
of resolving often difficult and ambiguous issues of law and fact.
Here, the primary means to promote decisional accountability (apart
from prophylactic measures like continuing judicial education) are
limited to the appellate process, statutory or constitutional amend-
ment, and the court of public opinion.
Thus far, I have avoided a discussion of judicial elections, which
are the elephant in the parlor of state judicial accountability. Suffice it
to say that judicial elections can serve to hold judges accountable in
ways that keep faith with all three objectives of judicial accountability
by turning out those who administer their courts ineffectively, behave
unethically, or disregard the law intentionally. It is, however, every-
one's right to cast her ballot as she sees fit, and there is nothing "im-
proper" about voters exercising their franchise in ways that exceed
the appropriate limits of judicial accountability described here. Voters
are free to punish honest error, to presume that errors are dishonest, or
to strip judges of their tenure for decisions the voters dislike, regard-
less of whether those decisions are erroneous as a matter of law. Elec-
tions can therefore lumber off, crushing judges who have done their
best to follow the law. Other means of accountability are likewise
vulnerable to misuse, but the longstanding and deeply entrenched
independence norms to which I have previously alluded have (with
exceptions) kept that impulse in check. Although it is beyond the
scope of this article, it is far less clear to me that the norms encircling
judicial elections adequately promote appropriate forms of account-
ability or discourage the inappropriate-which is among the reasons
why I have gone on record as a skeptic of judicial elections.4 1
THE ROLE OF PRESUMPTIONS IN EVALUATING CLAIMS OF
INTENTIONAL JUDICIAL ERROR

While there is some uncertainty at the margins, the institutional,

behavioral, and decisional accountability devices described here are
accepted parts of the judiciary's landscape. Judicial independence
norms allow for judges to be held accountable for their branch, their
behavior, and their decision-making. With respect to judi-
cial decision-making, most would agree that intentional disregard of
the law-regardless of the motive-is an indefensible usurpation of
power by judges who have sworn to follow the law, for which judges
are properly accountable to the public and political branches. Con-

41 See Charles Gardner Geyh, Why Judicial Elections Stink, 64 OHIO ST. L.J. 43 (2003).
2006] RESCUING JUDICIAL ACCOUNTABIi.TY

versely, honest mistakes may be corrected by fellow judges via the

judicial process and, absent evidence of incompetence, offending
judges should be insulated from discipline or other punishment. As
Tennessee Justice Adolpho Birch put it, "Judicial independence is the
judge's right to do the ' right
42
thing or, believing it to be the right thing,
to do the wrong thing.
At this juncture, my argument takes a subtle turn from the descrip-
tive to the normative. When it comes to holding judges accountable
for competent, honest, decision-making errors, available mechanisms
are (as a descriptive matter) limited to the corrective and exclude the
disciplinary or punitive, which is (as a normative matter) how it
should be. Disagreement persists as to whether the Supreme Court
would or should hold that it is unconstitutional for Congress to im-
peach and remove judges on account of their decision-making, to
deprive the federal courts of all jurisdiction to hear cases on a particu-
lar issue, to retaliate against the courts by eliminating judicial offices
and with them their occupants, or to punish unpopular judges by de-
pleting their nonremunerative resources. I have been content to con-
cede the very real possibility that each of these tactics technically may
be within Congress's constitutional authority to exploit. The point of
particular interest to me, however, is that disagreement over their
constitutionality persists because there are so few test cases-
Congress has often threatened to take one or another of these actions,
but made good on its threats only rarely.
The argument that I have developed elsewhere, and will not reprise
here at length, is that Congress's traditional or customary reticence to
punish judges for their decisions is the product of a deeply entrenched
constitutional norm that prizes the need for judicial independence as a
means to perpetuate rule of law values (including the separation of
powers). It is a norm that gradually emerged to govern the relation-
ship between the courts and Congress over time that exists independ-
ently of constitutional "law" as delineated by the Supreme Court. This
norm can be defended with reference to the role that a judiciary ought
to play in a representative democracy in which the powers of gov-
ernment are separated, as Professor Peter Shane has explained:
It is not exaggeration to say that a republican system of gov-
ernment, defined in the American tradition, depends upon the
judicial capacity to enforce constitutional limits on legislative
and executive power. Independence sufficient to render judi-

42 Unda Greenhouse, Judges Seek Aid in Effort To Remain Independent, N.Y. TIMES,
Dec. 10, 1998, at A20.
 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

cial review meaningful is a corollary requirement of republi-

can constitutional order.43
If one embraces the institutional norm that judges must be afforded
a measure of decisional independence to perpetuate the rule of law
through the exercise of judicial review, some might still challenge the
relevance of a dichotomy between intentional and unintentional error.
Even if "activist" judges delude themselves into honestly believing
that they are following the law, the argument is that the result is no
more tolerable and, thus, should be no less subject to political
sanction.
From this perspective, judicial independence principles operate
only within boundaries set by the outer limits of acceptable judicial
discretion. Professors John Ferejohn and Larry Kramer capture this
sentiment nicely when they describe judicial independence in terms of
its capacity to "foster a decisionmaking process in which cases are
decided on the basis of reasons that an existing legal culture recog-
nizes as appropriate. ' 44 By negative implication, independence norms
should not insulate a judge from majoritarian sanction for decisions
that fall outside the boundaries of what the legal culture regards as
appropriate, regardless of the judge's intentions or motives. For ex-
ample, in evaluating how far the First Amendment goes to protect
symbolic expression, reasonable minds may disagree as to whether
the First Amendment freedom of speech affords a protester the right
to bum a flag in front of a legionnaire-yes and no answers can both
be defended with reasons acceptable to our legal culture. On the other
hand, no comparable room for uncertainty exists as to whether the
First Amendment gives a protester the right to bum a legionnaire in
front of the flag and, if a court were to uphold such a "right," the rul-
ing would exceed the tolerable limits of judicial discretion. For pur-
poses of deciding whether (and how) to hold the judge accountable
for this latter decision, should it really matter whether the misguided
jurist truly believed she was following the law?
In a word: yes. As a conceptual matter, one may accept that deci-
sional independence operates within the limited sphere that Ferejohn
and Kramer posit. That sphere, however, is elastic and its limits are
defined with reference to judicial decisions on the edge of public ac-
ceptance. To threaten or punish judges with loss of tenure, resources,
or jurisdiction for honestly held but unacceptable views of the law,

43 Peter M. Shane, InterbranchAccountability in State Government and the Constitutional

Requirement of JudicialIndependence, 61 LAw & CONTEMP. PROBS. 21, 30 (1998).
" John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Insti-
tutionalizingJudicialRestraint, 77 N.Y.U. L. REV. 962, 971-72 (2002).
2006] RESCUING JUDICIAL ACCOUNTABILITY

encourages judges to jettison their conceptions of what the law re-

quires in favor of what they believe those in a position to punish them
want to hear-which is antithetical to the rule of law values that cus-
tomary independence is calculated to preserve. This is not to suggest
that judges should be unaccountable for unacceptable decisions-
decisions at the edge are subject to appellate review. They give rise to
discussions in the media, which elicit reactions from voters, who peti-
tion the political branches, which explore amendments to existing law
that judges must consider anew. Meanwhile, those charged with se-
lecting new judges consider whether the ideological bent animating
the problematic judicial decision falls so far outside the mainstream
that like-minded jurists should be excluded from the candidate pool.
In short, the question is not whether judges should be accountable for
decisions that exceed the limits of public acceptance, for the answer is
clearly yes. The real question is how they should be accountable and
how timid we want judges to be in their forays to the edge. If the ob-
jective is to preserve the rule of law as best we can, it would seem
that the dichotomy between honest and dishonest error needs to be
preserved, and that in the case of honest error, accountability should
be limited to corrective measures, and exclude punitive ones.
If one preserves the dichotomy between honest and dishonest error
and accepts that the latter is properly subject to forms of accountabil-
ity that the former is not, a lingering problem remains as to classifica-
tion. Court critics who propose to hold judges more accountable for
their decisions are concerned by judicial rulings that they characterize
as deliberate usurpations of power-not unintentional errors. Court
supporters look at those same rulings and often maintain that the
judges did not err at all-let alone intentionally; to sanction such
judges for reaching the right result or at worst making simple mis-
takes cuts to the quick of judicial independence.
In other words, court defenders and detractors classify the same
events in fundamentally different ways: one side's incisive ruling or
innocent mistake is the other side's naked power-grab. The question
then becomes one of proof or, absent access to proof, one of
presumptions.
To prove that a judicial ruling constitutes a willful usurpation of
power, one must first show that the ruling in question is erroneous,
which is easier said than done. In the federal courts, recent allegations
of judicial activism (which I regard as another way of saying that the
judge has abused her power by intentionally disregarding the law in
the service of personal or political objectives) almost always arise in
the context of constitutional cases, where the law is in a state of ex-
 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

treme flux. Lawrence Tribe made the point powerfully in an open

letter explaining his decision not to publish a new edition of his con-
stitutional law treatise:
There is a time to write a constitutional law treatise ...but
this is not such a time. The reason is that we find ourselves at
a juncture where profound fault lines have become evident at
the very foundations of the enterprise, going to issues as fun-
damental as whose truths are to count and, sadly, whose
truths must be denied. And the reality is that I do not have,
nor do I believe I have seen, a vision capacious and convinc-
ing enough to propound as an organizing principle for the
next phase in the law of our Constitution.45
The "profound fault lines" to which Tribe refers, engender irresolv-
able disagreements over the merits of controversial constitutional
cases and open the door to accusations of activism from losing liti-
gants and their supporters that are as difficult to debunk as they are to
prove.
As a practical matter, however, the difficulty of proving judicial
error pales in comparison to the difficulty of proving that the error
was intentional. In aberrational cases, judges may concede that they
have deliberately disregarded the law. For example, Alabama Chief
Justice Roy Moore was removed from office for openly refusing to
comply with a federal court order to remove a display of the Ten
Commandments from his courthouse. 46 Such cases are extremely rare;
instead, judges almost invariably profess to follow what they think is
the law, and reveal nothing in their rulings to sully the purity of their
stated intentions.
Court critics resolve this difficulty (often implicitly) by presuming
bad intent from the egregiousness of the error itself. If judicial error is
presumptively intentional, however, it effectively eliminates the dis-
tinction between intentional and innocent error (by presuming the
latter out of existence) and thereby extinguishes the independent
judge's "right to do the wrong thing," as long as she "believ[es] it to
be the right thing. '47
If judicial independence means anything, it means that judges who
do their best to follow the law should not fear punishment, even when
they err-necessitating a rebuttable presumption that judges have

45 Lawrence H. Tribe, The Treatise Power, 8 GREEN BAG 2D 291, 294-95 (2005).
46 Robert Marus, Moore Loses Final Appeal To Save Job as Chief Justice, UNITED
BAPTIST PRESS, May 4,2004.
47 See Greenhouse, supra note
42.
2006] RESCUING JUDICIAL ACCOUNTABILITY 929

acted in good faith, absent evidence to the contrary. Such a presump-

tion may impose an onerous burden on those who would hold judges
more closely accountable for "activist" decision-making by requiring
them to prove the unprovable. It is, however, a presumption no less
difficult to overcome than that which targeted judges would have to
meet if the contrary presumption (that judicial errors are ill-
motivated) were imposed and strikes a more defensible balance be-
tween judicial independence and accountability.
The law of defamation provides a useful analog. Exposing report-
ers to defamation liability for innocent mistakes may dampen their
ardor to pursue the truth and lead them to approach the targets of their
investigation with excessive caution and deference. And so the Su-
preme Court has made the media answerable for the defamation of
public figures only when their mistakes are knowingly false or made
in reckless disregard of the truth-in other words, the Court has em-
ployed a dichotomy between intentional and unintentional error akin
to that which I have proposed here. That still leaves the question of
where the presumption lies: should the accuser bear the burden of
showing that a mistake was willful or should the accused be required
to show that the mistake was innocent? Given the difficulty of prov-
ing (or disproving) one's state of mind, whichever presumption one
adopts will typically dictate the outcome. Accordingly, if we are seri-
ous about buffering the media from defamation liability for innocent
mistakes, we must presume that their statements are innocent unless
the plaintiff proves otherwise. Thus, to establish their claim, a plain-
tiff must produce "clear and convincing evidence" to demonstrate that
48
the media's statements were knowingly or recklessly false. Such a
burden requires the plaintiff to do more than simply point to the de-
fendant's erroneous statement and urge the fact finder to infer from its
49
falsity that the defendant must have known it was untrue.
The history of judicial impeachments tells a surprisingly similar
story that I have recounted at length elsewhere.50 In 1805, Justice
Samuel Chase was impeached by the House of Representatives for
high-handed judicial decision-making. At his Senate trial, Justice

4 See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 (1984) ("Judges,
as expositors of the Constitution, must independently decide whether the evidence in the record
is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not
supported by clear and convincing proof of 'actual malice."').
49 Id. at 486 ("The Court of Appeals correctly concluded that there is a significant differ-
ence between proof of actual malice and mere proof of falsity, and that the requisite additional
proof was lacking in this case."); 50 Am. JUR. 2D Libel and Slander § 33 (2004) ("Actual malice
cannot be imputed merely because the information turns out to be false. An erroneous interpre-
tation of the facts does not meet the standard of actual malice.").
50See GEYH, supra note 20.
 930 CASE WESTERN RESERVE LA W REVIEW [Vol. 56:4

Chase drew a distinction between innocent and ill-motivated error

that resonates to this day. For Chase, "ignorance or error in judgment"
is an impeachable offense only if it has "flown from a depravity of
heart, or any unworthy motive., 51 Accordingly, if the Senate found
that he "hath acted in his judicial character with wilful injustice or
partiality, he doth not wish any favor; but expects that the whole ex-
tent of the punishment permitted in the constitution will be inflicted
upon him., 52 If not, Chase was "confident that this court will make
allowances for the imperfections and frailties incidental to man. 53
The House managers (who prosecuted Chase in the Senate), argued
that the Senate should presume an ill-motive from the errors them-
selves. Manager George Campbell explained:
The judge insists, if he was mistaken, it was an error of
judgment. This cannot be presumed. Ignorance of the law is
no excuse in any man; but in a character of such high legal
standing and known abilities as that of the accused, it is to-
tally inadmissible and not to be presumed. How could any
judge with upright intentions commit so many errors, or hit
upon so many mistakes in the course of one trial . .. . They
must have been the result of design .... 54
Justice Chase's counsel, Philip Barton Key, argued for the opposite
presumption, insisting that "the best gifted mortals are frail, and a
single erroneous decision may be made by any man." 55 He cited Eng-
lish precedent for the proposition that "an error in judgment has never
of itself been considered an evidence of corruption in a judge" and
concluded that "however gross the error of the judge, it cannot in it-
self contain any foundation for presuming fraud., 56 Key would appear
to have won the argument since Justice Chase was acquitted on all
counts.
The same arguments were replayed at the 1830 Senate impeach-
ment trial of district judge James Peck, who had been impeached for
abusing his contempt power in an isolated case. Both sides agreed
that dishonest errors were impeachable while innocent ones were not.
House manager James Buchanan insisted that a bad motive should be
presumed from the gravity of the error itself, for "[i]f a judge has cru-

51 1 TRIAL OF SAMUEL CHASE 102 (DeCapo Press 1970) (1805) (statement of Justice
Chase) (emphasis omitted).
52 id.
53 Id. (emphasis omitted).
54 Id. at 383.
"" Id. at 81.
56 Id.
20061 RESCUING JUDICIAL ACCOUNTABILITY

elly and illegally imprisoned and punished an American citizen, the

court before whom he is impeached will never set out to hunt after a
good motive for this bad action. 57 Judge Peck's counsel begged to
differ, stressing that "guilty intention is not to be inferred from the
alleged incorrectness of his judicial opinion, but must be satisfactorily
proved by the evidence in the cause. 58 For Judge Peck and his law-
yers, buffering judges from impeachment for innocent errors was
essential to preserving judicial independence. As Peck's counsel ex-
plained in his closing argument:
The question before you, sir, is not that of Judge Peck alone.
It is the question of the independence of the American judici-
ary ....Is this Court prepared to suspend the sword by a hair
over the heads of our judges, and constrain them to the per-
formance of their duties amidst fear and trembling from the
terrors of an impeachment? 59

Once again, the Senate voted to acquit.

The final Senate trial in which a judge was impeached (at least in
part) for decision-making error occurred in 1905 and featured district
judge Charles Swayne, who, like Peck, was accused of abusing his
contempt power in a single case. Once again, those who favored
Swayne's removal argued that "[i]f an unlawful act is committed by a
judge ...the law conclusively presumes an evil intent." 6 They were
quite candid that absent such a presumption, it would be nearly im-
possible to obtain a conviction because "[iut is not to be expected that
a judge who intends to use his judicial power to gratify his malice or
ill will or to punish one he hates will declare the fact in advance or
confess it after the sentence is pronounced.' Swayne's counsel, in
response, countered with a familiar argument that explicitly linked the
House managers' burden to overcome a presumption that Judge
Swayne's error was innocent to judicial independence:
Unless you show his dishonesty or malice in his judicial ac-
tion he is protected by that shield which the wisdom of our
judicial system throws around the bench, for if a man may be
questioned for his decision from the bench, even if he be
wrong, if for a decision wrongfully given from the bench he

57 ARTHUR J. STANSBURY, REPORT OF THE TRIAL OF JAMES H. PECK 428 (1833).

58 Id. at 489 (argument of William Wirt) (emphasis omitted).
59 Id. at 573.
60 58 CONG. REC. 214, 221 (1904).
61 PROCEEDINGS IN THE SENATE OF THE UNITED STATES IN THE MATrER OF THE
IMPEACHMENT OF CHARLES SWAYNE 76 (1905) (statement of Congressman Henry Palmer).
 CASE WESTERN RESERVE LAW REVIEW [Vol. 56:4

may be punished, imprisoned, or removed, our judiciary has

no protection.62
As with each of the preceding trials in which judges stood accused of
impeachable, decision-making error, Swayne was acquitted.
By the 1940s, the House had learned its lesson, and ceased to initi-
ate impeachment investigations into allegations of judicial error. In
the 1980s, the House Judiciary Committee was deluged with over
100,000 letters calling for an impeachment inquiry into the conduct of
three circuit court judges who had ordered a new trial for a defendant
in a capital murder case. The Chairman of the House Judiciary Com-
mittee's Subcommittee on Courts issued a report that bluntly declined
to initiate such an inquiry:
Federal judges should not and cannot be impeached for ju-
dicial decisionmaking, even if a decision is an erroneous one.
The conduct complained about--entering a judgment and or-
der-is an act that judges are required to do under the Consti-
tution. It would be a great irony if the protections found in the
Judiciary's constitutional charter-Article I--did not shield
judges in their decisionmaking role.63
Although threats to impeach errant judges for usurping power still
trip off the tongues of angry legislators, few take such threats seri-
ously. This is not to suggest that such threats are meaningless: the
specter of an impeachment inquiry--even an unsuccessful one-may
well serve to chasten, if not intimidate targeted judges. 64 But the
point, for purposes here, is that independence norms of long-standing
vintage have given rise to a presumption that errant decision-making
is not ill-motivated absent convincing evidence to the contrary.
The issue of presumptions has not explicitly arisen outside the
context of impeachment proceedings, which is not especially surpris-
ing insofar as impeachment looks and feels a lot like a criminal proc-
ess, where the need to allocate burdens of proof between accused and
accuser is pretty obvious. The role of presumptions is not as readily
apparent when it comes to legislative proposals aimed at curbing ju-
dicial action. Presumptions are nonetheless relevant to all forms of

62 Id. at 683 (statement of John Thurston).

63 H. COMM. ON THE JUDICIARY, 99TH CONG., FINDINGS AND CONCLUSIONS OF ROBERT
W. KASTENMEIER ON CITZEN PETITIONS To IMPEACH THREE FEDERAL JUDGES 8 (1986) (on
file with author).
6 See Mark 0. DeGirolami, Congressional Threats of Removal Against Federal Judges,
10 Tax. F. ON C.L. & C.R. 111 (2005) (discussing the effects of impeachment and threatened
impeachment of federal judges).
20061 RESCUING JUDICIAL ACCOUNTABILITY

decisional accountability for ill-motivated error. Regardless of

whether the sanction is impeachment, disestablishment, a budget cut,
or diminished jurisdictional authority, holding judges directly ac-
countable to the political branches for decision-making error is justi-
fied if the error is deliberate but not if it is innocent-which begs the
questions of where the presumption lies, and what evidence will be
sufficient to rebut that presumption.
Implicitly, however, the issue of presumptions has been asked and
answered. As noted previously, Congress has developed a long- 65
standing tradition of respect for the judiciary's autonomy.
Legislative proposals to obliterate the judgeships of offending jurists,
to deprive the courts of jurisdiction to decide cases on politically
sensitive issues, or to starve unpopular courts of legislative resources
have-with only isolated exceptions-been rejected as antithetical to
judicial independence norms. 66 Underlying this tradition is the
presumption that decision-making errors are innocent; if it were
otherwise-if errors were presumptively ill-motivated-then the
tradition of respect for the judiciary's independence would be utterly
irrational in that it would be aimed at insulating judges from direct
political accountability for presumed abuses of power.
Speakers at the Symposium where a draft of this article was dis-
cussed were of the view that in an age of legal realism, the line I have
drawn between intentional and unintentional error-if it exists at
all-may be too indistinct to be useful.67 To be sure, legal realism has
taught us that when it comes to Supreme Court decision-making, law
and politics can converge inextricably. Justices predictably rule in a
manner consistent with their political ideologies and there is no easy
way to separate the justice whose ideology merely influences his un-
derstanding of what the law is from the justice who intentionally dis-
regards the law in the service of his political agenda. And so, one can
trot out a parade of Supreme Court cases and ask, almost rhetorically,
was a particular justice's "error" intentional, If we are truly serious
about protecting the judiciary's independence, do we really want to
start investigating the motives of justices in controversial cases?

65 See GEYH, supra note 20; see also Charles G. Geyh, Judicial Independence, Judicial
Accountability, and the Role of Constitutional Norms in Congressional Regulation of the
Courts, 78 IND. L.J. 153 (2003) (discussing Congress's approach toward judicial autonomy).
66 GEYH, supra note 20.
67 See Susan Bandes, Judging, Politics, and Accountability: A Reply to Charles Geyh, 56
CASE W. RES. L. REV. 947, 955 (2006) (arguing that the taxonomy presented here overlooks
many factors that make judges insufficiently accountable); William P. Marshall, Judicial Ac-
countability in a Time of Legal Realism, 56 CASE W. RES. L. REv. 937, 945 (2006) (questioning
whether one can clearly identify decisional errors and, further, whether it is wise to punish
judges for all such errors).
 CASE WESTERN RESERVE LA W REVIEW [Vol. 56:4

I have three responses. First, I do not share my colleagues' obses-

sion with the United States Supreme Court. Pound for pound, the jus-
tices of the Supreme Court are more influential than other judicial
officers but they are hardly representative of judges as a class. The
Supreme Court is truly unique among American courts in that it alone
may say (and its justices have said) that the law means whatever the
Supreme Court says it means. 68 Insofar as the Supreme Court is
thereby authorized to make constitutional policy and liberated to con-
form the law to its ideological vision, distinguishing intentional from
unintentional disregard of the law may be a less meaningful exercise
(because the law is what the Court says it is). But the ground rules for
other judges are different and when it comes to the administration of
justice in the United States, there are over twenty-nine thousand of
these "other" judges in the state courts alone, who hear over one hun-
dred million cases filed each year, as compared to the nine U.S. Su-
preme Court justices who decide fewer than ninety cases in that same
time.69
Second, even on the Supreme Court, the distinction between inten-
tional and unintentional error retains validity at a conceptual level.
The triumph of legal realism forces us to abandon the antiquated,
formalist notion that in judicial decision-making, law means every-
thing. But we are not required to embrace the opposite extreme that
law means nothing and, indeed, the research of neo-institutionalist
political science scholars cautions against so sweeping a conclusion.7 °
If the law still means something to judges, then the longstanding ra-
tionale for an independent judiciary (including an independ-
ent Supreme Court)-to buffer judges from interference with their
capacity to uphold the law as they construe it to be written-retains
vitality. In this context, the justice who intentionally disregards the
law in the service of ideological objectives abuses her independence,
violates her oath of office, and properly subjects herself to sanction,
while the justice who follows the law as she reads it, even if her read-
ing of the law is profoundly influenced by her political ideology, does

68 CHARLES E. HUGHES, ADDRESSES AND PAPERS OF CHARLES EVANS HUGHES 139-41

(1908) (highlighting that "the Constitution is what the judges say it is").
69 See NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS, 2004:
A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 16 (2004) (reporting that
100.1 million cases were filed before 29,373 state-court judicial officers in 2003), availableat
http://www.ncsconline.orglDResearchlcsp/2004-FileslEWOverview final_2.pdf. For data on
the U.S. Supreme Court, see http://www.supremecourtus.gov/publicinfo/year-end/2005year-
endreport.pdf (reporting eighty-seven Supreme Court cases argued and eighty-five decided in
the 2004 term).
70Howard Gillman & Cornell Clayton, Beyond Judicial Attitudes: Institutional Ap-
proaches to Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING 1, 6-7
(Clayton & Gillman eds., 1999).
2006] RESCUING JUDICIAL ACCOUNTABILITY

not. The problem, of course, is that the line separating intentional

from unintentional disregard for the law is virtually never so clear in
practice because justices rarely admit to usurping power-but that
does nothing to undermine the conceptual validity of the distinction.
Third, the practical difficulty of parsing intentional from uninten-
tional error is properly resolved with reference to the presumption of
innocence I have highlighted. Because deeply entrenched norms of
judicial opinion-writing almost inevitably lead the authors of judicial
decisions to characterize their rulings as well-intentioned efforts to
follow the law, the presumption of innocence is virtually irrebuttable
absent extrinsic evidence of bribes or favoritism, which has always
subjected judges to removal. The net effect of this presumption,
which has been in place for two centuries, has not been to in-
vite independence-threatening inquiries into the motives of judges,
but to thwart them. And that is how it should be.

CONCLUSION

The thrust of this essay has been twofold. First, judicial

accountability features a variety of permutations, virtually none of
which undermine judicial independence, properly understood. To the
contrary, institutional, behavioral, and decisional accountability
preserve an environment in which an independent judiciary is not
only tolerated, but revered. Second, recent efforts by some court
critics to punish judges for so-called activist decision-making exceeds
the appropriate limits of decisional accountability. Although one may
fairly conclude that discipline or punishment is warranted for judges
whose decisions deliberately usurp political power, judicial
independence norms logically require, and historically have required,
that we begin with a presumption that the judicial errors are
innocently motivated-a presumption that cannot be overcome
simply by pointing to the decision itself and declaring "res ipsa
loquitor."