Returning to first principles, this Comment develops and defends a bright-line rule for conceptualizing effective removal. Article III vests federal judges with the power to decide legal cases and controversies within limits set by the Constitution and Congress. Individual judges are not entitled to dockets of any particular size or scope. Yet possessing some measure of case-deciding power is a necessary condition for holding judicial office. It follows that a judge does not hold office if she does not wield any judicial power, as when a categorical prohibition on hearing cases eliminates her entire docket. When a case-suspension sanction under the JCDA even temporarily has that effect, disqualifying a judge who lacks assigned cases from further assignments, it unconstitutionally removes the judge from office.

After crystallizing the concept of effective removal, the Comment attends to non-merits-related reasons that courts are unlikely to accept this challenge to the JCDA even in compelling cases; assesses the risk that the Act’s case-suspension provision could be abused to effectively remove judges for improper reasons; and ultimately proposes a targeted amendment to the provision that would foreclose the possibility of effective removal and conform the Act’s scheme of judicial self-discipline to the Constitution’s separation of powers.

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The oldest federal judge currently stands barred from hearing cases. In September 2023, the Judicial Council of the Federal Circuit suspended Judge Pauline Newman, now 96, from case assignments after determining that she had committed “serious misconduct.” Her offense? Refusing to cooperate with the Council’s investigation into whether she remained mentally fit for her judicial duties, thereby impeding the judiciary’s “self-policing” mechanism. Congress established that mechanism with the Judicial Conduct and Disability Act of 1980 (JCDA), which empowers each circuit’s judicial council to investigate complaints about lower court judges and impose appropriate sanctions.

For instance, as in the Federal Circuit, a council can order that “no further cases be assigned” to a sanctioned judge “on a temporary basis [and] for a time certain.” Judge Newman’s suspension is set to last until she submits to a detailed cognitive evaluation arranged by the Council. Yet she has ruled out complying with that condition, having previously submitted her own medical records attesting to her competency. This standoff has continued since Judge Newman circulated the final opinion assigned before her suspension. She may never hear a case or write an opinion again.

Courts, for their part, have declined to confront the paradigm case of effective removal: the complete elimination of a judge’s docket. The last appellate court to consider an effective removal–style argument rejected the plaintiff-judge’s challenge to his short-term suspension but explicitly reserved the question of whether a sufficiently long-term suspension could result, de facto, in termination of judicial tenure, a consequence that the Constitution reserves for Congress to impose through impeachment. It stands to reason that, at some point, a suspended judge can no longer fairly be said to “hold [ ] Office[ ]”. The question is how to draw the line where suspension from cases becomes removal from office.

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In the absence of case law, this Comment develops an account of effective removal from first principles. The Constitution provides that federal judges shall “hold their Offices during good Behaviour,” that is, unless impeached. Though Article III does not define judicial “[o]ffice[ ],” it vests judges with the “judicial Power of the United States” to decide certain categories of cases and controversies. “It is emphatically the province and duty of the judicial department to say what the law is” and to “apply the [appropriate legal] rule to particular cases.” And, as deciding cases is the judiciary’s core collective function, it also becomes the central job requirement of individual judges when they swear, upon confirmation to the bench, to “well and faithfully discharge the duties of the[ir] office.” These premises set up a syllogism. If holding judicial office requires wielding judicial power, and if wielding judicial power means hearing and deciding cases, then a judge that cannot hear and decide cases does not hold judicial office.

Filling in this formalism requires determining the quantum of case-deciding power that suffices for holding judicial office. The JCDA carefully limits permissible suspensions to those that apply “on a temporary basis [and] for a time certain,” implying that the relevant metric is temporal: if a judge will resume hearing cases in the future, he has not been removed.

Yet nothing compels this approach—the concept of temporary removal, followed by reinstatement, does not offend language or logic—and in fact there are compelling reasons not to fixate on a suspension’s duration. Even a suspension originally imposed for a “time certain” can be renewed indefinitely. Setting a cumulative upper limit on months or years that a suspension can last before it qualifies as removal would be inevitably arbitrary. Most importantly, a time limit simply does not address the relevant constitutional concerns. A suspension could last for mere weeks and still do grave harm to judicial independence if, for example, it determined the outcome of specific cases.

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So while the amount of case-deciding power that an individual judge is constitutionally entitled to wield necessarily remains minimal, the only legal process that can deprive a judge of that power is impeachment. Hence the Comment’s bright-line rule: any legal proceeding that directly and categorically deprives a judge of all case-deciding power thereby removes him or her from office—even if the deprivation, couched as a “suspension,” is temporary. A suspension that is short-term or limited to certain types of cases may never achieve this forbidden effect. But if all a judge’s current cases are reassigned at the same time that his new assignments are suspended, or if the suspension is so lengthy that he finishes his prior assignments while still barred from taking on new ones, then the deprivation of case-deciding power is complete and the judge stands effectively removed.

This stark example of effective removal should serve as an inflection point for assessing case suspensions under the JCDA— their constitutionality and their wisdom. Though suspensions have remained infrequent over the past four decades, they are poised—like discipline proceedings more generally—to become more common as the federal judiciary grows in size and greys in age. The median member of Article III now approaches 70 years old, and political polarization creates pressure for elderly judges to delay retirement until conditions exist for the appointment of like-minded replacements.

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Even if suspensions remain infrequent, moreover, they deserve scrutiny given the magnitude of constitutional and political harm that would result from their abuse. Prior criticism has focused on the risk that judicial councils will exercise “guild favoritism” to protect their peers from accountability, which if anything diminishes the likelihood of effective removal. Yet an even greater risk is that the JCDA process could be (or appear to be) wielded to target judges for ideological reasons, a charge that Judge Newman and her defenders have levied. While no evidence of such abuse exists in Judge Newman’s case, the prospect is unsettling: imagine a politically inflected suspension that tipped the balance of en banc review in a high-profile circuit case. Proponents of the JCDA have traditionally maintained that judges can be trusted to exercise more even-handed oversight of their colleagues’ conduct than external, political actors. But mounting political and ideological polarization within the judiciary could destabilize that normative foundation of judicial self-policing.

Congress should prophylactically amend the JCDA to defuse the constitutional land mine that is effective removal. An amendment should clarify that Article III judges may only be categorically disqualified from new case assignments so long as they retain previously assigned cases on their dockets; and that the “time certain” standard applies only to less-than-categorical suspensions from certain kinds of cases or those involving certain (or certain kinds of) litigants. This narrow approach to amending the JCDA would maximize political feasibility and preserve the overall system of judicial self-discipline. It could also provide a springboard for considering more significant reforms to address looming issues of judicial old-age disability, which the Comment briefly canvasses in conclusion.

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The Constitution protects the independence of federal judges by guaranteeing that they hold office unless impeached. If this guarantee is to mean anything, judges cannot be wholly deprived of the case-deciding power inherent in judicial office by means other than impeachment. This Comment has drawn upon both formalist and functionalist modes of constitutional interpretation and argument to show that case-suspension sanctions under the Judicial Conduct and Disability Act of 1980 can effectively remove an Article III judge from office, undermining both the separation of powers and judicial independence. No doubt judicial councils will exercise effective removal power responsibly in most cases. But perfect forbearance is not assured. And the Constitution forbids this end run around the Impeachment Clause even if the results prove mostly benign.

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