- If a complainant is dissatisfied with the disposition of the circuit council, the complainant may petition for review by the judicial conduct and disability committee of the Judicial Conference (review is discretionary).
Applying the Act to the Justices without modification would place inferior court judges in the position of evaluating members of a body that is hierarchically superior. This could possibly lead to undue deference. Applying the Act to the Court might be constitutionally infirm as well if the disciplinary process encroached on the judicial decisionmaking function of the Court.[140]
Additionally, the Act’s lack of a standing or jurisdictional requirement for filing a complaint may be open to abuse. The Act allows “any person” to file a complaint against a federal judge. In 2013, chief circuit judges resolved 1,167 filed complaints, dismissing all but 20 as “merits-related, lacking sufficient evidence, frivolous, or otherwise improper.”[141] These numbers would likely be even higher if the statute applied to the Supreme Court due to the visibility of the Court and the individual Justices.[142]
Furthermore, the stakes of the procedure would be much higher if applied to the Court. Sanctions under the Act “may include … ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint.”[143] Although Justices do not have their own dockets, temporarily restricting a Justice from the work of the Court would be a highly consequential event that would deprive litigants and the American people of whatever number constitutes a full complement of Justices.[144] Unlike in the lower courts, there is currently no mechanism for replacing an absent Justice. The availability of such a sanction could cause groups to file more complaints in the hope of removing those Justices with whom they tend to disagree. Further, and more broadly, it is possible that interest groups seeking to mobilize support, raise money, and pursue their own agendas would see in this process an avenue for seeking their own ends to the detriment of the Court, individual Justices, and the public.
2. Internal Disciplinary Procedures
An internal disciplinary procedure for the Court would avoid the issue of having inferior court judges sit in judgment of the Justices or the more serious risks that could arise if the disciplinary process were run by persons outside the judiciary.[145] Some of the mechanisms of the Judicial Conduct and Disability Act, detailed above, could serve as a model for procedures tailored to the Justices. If these procedures called for internal enforcement, the Chief Justice (or next most senior Justice, in the event of conflict) could review complaints against
