By Kevin E. Noonan –

The Judicial Council of the Federal Circuit, represented by the U.S. Solicitor General, recently filed its Respondents’ Brief in Opposition to Judge Pauline Newman’s Petition for Certiorari.  While the brief followed its expected path of rebutting Judge Newman’s arguments, like much of these proceedings there was an undercurrent of at least a little disparagement (despite the general litany of encomiums the Judge deserves after her 40+ years of service on the bench).

The Respondents’ arguments were simple: there was ample basis for the Chief Judge to have initiated proceedings under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980; Judge Newman had committed judicial misconduct for refusing to submit to the medical and psychological testing required by the Special Committee; and there was nothing ultra vires, against the Constitution, or that violated Judge Newman’s due process rights by the Judicial Council submitting the Judge to serial punishments of having her judicial powers and prerogatives suspended year after year after year.  Nor were there deficiencies in the legal reasoning in the D.C. Circuit Court’s decision in McBryde v. Committee to Review Circuit Council Conduct & Disability Orders, 264 F.3d 52 (D.C. Cir. 2001) (despite the questions raised by members of the panel that affirmed the D.C. District Court’s dismissal of Judge Newman’ complaint against the Judicial Council on these grounds).

The brief contains a Statement section setting forth the proceedings below, the history of enactment of the Act, and the purported policies behind it.  These include imputing to Congress the intention of seeking to “balance” multiple “competing risks” taken from a report to the Chief Justice from Justice Breyer’s Committee reviewing the Act.  The Committee recognized, according to the brief that permitting other judges to investigate sitting federal judges for “misconduct or disability” could risk “undue interference with the Constitution’s insistence upon judicial independence,” while at the same time other judges could risk “inappropriate sympathy with the judge’s point of view or de-emphasis of the misconduct problem.”  Accordingly, the brief contends, the system was designed to rely on chief circuit judges and members of the judicial councils to apply “strict statutory standards.”  The relevant assertion to these proceedings is that the purpose of the Act was “not to punish but to protect the judicial system and the public from further acts by a judicial officer that are detrimental to the fair administration of justice.”  Also relevant is the assertion that only “[i]n exceptional circumstances [would] a chief judge or a judicial council . . . ask the Chief Justice to transfer a proceeding.”

This portion of the brief lays out the procedures governing proceedings according to the statute, in an effort to portray the history of the actions taken in Judge Newman’s case as arising in the ordinary course.  The brief then sets out the history of how the events behind the eventual suspension of Judge Newman unfolded, including tardiness (a “backlog” in fulfilling the Judge’s duties in producing assigned opinions) as justification for precluding assignment of any further opinions to Judge Newman as a way of ensuring “the effective and expeditious administration of justice.”  What followed was a “limited inquiry” to assess Judge Newman’s capacity for performing an active judge’s duties and Chief Judge Moore’s determination that health problems precluded Judge Newman from adequately performing those duties, supported by concerns from half the active judges on the Federal Circuit (concerns that the brief contends Judge Newman rejected regarding efforts to arrive at “any informal resolution”).  Next came an “extensive investigation” by the Special Committee (consisting of Chief Judge Moore, former Chief Judge Prost, and Judge Taranto) and evidence (“more than 20 statements” and the Judge’s e-mails) supporting a picture of “paranoia, increased confusion, and worsening memory problems”; these were accompanied, according to the brief, by instances where the Judge had purportedly “accused staff of trickery, deceit, acting as her adversary, stealing her computer, stealing her files, and depriving her of secretarial support” (the brief mentions that Judge Newman had not challenged the accuracy of this evidence).  Then came the predicate for the circumstances that led to the current situation, wherein the Special Committee “directed petitioner (1) to produce certain medical records to an independent neurologist and (2) to undergo a full battery of non-invasive neurological and neuropsychological examinations to enable resolution of the disability issue,” the brief mentioning that Judge Newman’s own expert neurologist recommended such examinations.  The result of Judge Newman’s refusal to comply (really, to be forced to be examined by medical experts of the Special Committee’s choosing rather than her own) was the Judicial Council’s determination that her refusal constituted judicial misconduct and its decision to suspend the Judge from her judicial duties for one year, not once but (so far) a total of three times.  This decision was supported by the refusal by the Judicial Conference’s JC&D Committee (comprising seven Article III judges from outside the Federal Circuit) to transfer the matter away from the Federal Circuit’s Judicial Council (including its decision that Judge Newman’s due process of law rights had not been violated, based on procedures in “an administrative proceeding” before the Judicial Council under Withrow v. Larkin, 421 U.S. 35,47 (1975)) nor had there been a constitutional violation due to the “temporary” (albeit ongoing) nature of the suspensions imposed on the Judge by the Judicial Council).

The brief then turns to the history of Judge Newman’s complaint before the D.C. District Court and the D.C. Circuit Court of Appeals on due process and constitutional grounds, in which these courts ruled against her.  These outcomes relied (almost entirely) on the McBryde decision and while the unanimity of the Circuit Court’s decision is emphasized, there is no mention of the misgivings of the panel over the legal reasoning of the McBryde decision.

In the brief’s Argument, the Solicitor General makes the Government’s case that Judge Newman’s petition should be denied for two reasons: first, that many of the claims have been forfeited for not being “adequately pressed or passed upon below,” thus making them “manifestly unsuited for [the] Court’s review.”  The brief cites Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), for the principle that the Supreme Court is “a court of review, not of first view.”  In the Government’s view, Judge Newman failed to preserve many of the theories presented in her petition (which would itself be enough to merit denial of the petition).  These defective contentions include that the Judicial Council’s application of the provisions of the statute that preclude judicial review were ultra vires; the brief asserts that the D.C. Circuit had recognized that Judge Newman had not properly pressed this argument before the District Court.  A similar argument is asserted for Judge Newman’s claims that 28 U.S.C. § 357(c) does not apply to claims for “prospective relief.”  And even those arguments not so forfeited, such as her request for judicial review of “as-applied” constitutional claims should fail on the merits.

Second, in a similar vein the brief argues that Judge Newman’s contentions “lack merit and implicate no circuit split,” because the statute reflects a “sensible policy decision [that] ensures a mechanism for reviewing allegations of judicial misconduct or incapacity that comports with separation-of-powers considerations, offers multiple layers of review, and prevents overburdening federal courts with complaints about judicial-council decision.”  According to the Government, the Judge’s ultra vires contentions concern express provisions in the statute that “‘all orders and determinations by a judicial council or the Judicial Conference ‘shall not be judicially reviewable on appeal or otherwise‘” (emphasis in brief).  Pithily, the brief states that “all means all” and Congress explicitly directed complaints such as Judge Newman’s to the Judicial Conference under 28 U.S.C. §§ 357(a) and 357(b).  The brief acknowledges exceptions (“in narrow contexts”) in instances where the Court has permitted judicial review for ultra vires actions under the Administrative Procedures Act, such as Leedom v. Kyne, 358 U.S. 184, 185-89 (1958), but counters with other decisions where the Justices have not done so, such as Nuclear Regulatory Comm’n v. Texas, 605 U.S. 665, 681 (2025), and Board of Governors v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991).  The brief counters Judge Newman’s citations of Johnson v. Robison, 415 U.S. 361 (1974), and Webster v. Doe, 486 U.S. 592 (1988), on the merits, distinguishing Webster on the basis that the statute invoked in that case “did not clearly indicate that ‘Congress meant to preclude consideration of colorable constitutional claims’” and in Johnson on the grounds that the decisions deemed not precluded under the statute were constitutional claims.  And the Government contends that the availability of Judicial Conference review provided further distinctions between the situations in Webster and Johnson.

Regarding the Judge’s argument that only previously issued orders and determinations were precluded from judicial review, in contradistinction to prospective, future orders, is ” completely atextual” and that “is hard to imagine any prospective relief that would not entail judicial review of an extant order or determination.”  The brief asserts that to recognize the distinction Judge Newman draws would “drive a gaping hole in the scheme Congress prescribed,” i.e., intending that “virtually all claims to end up before the Judicial Conference rather than being diverted to district court” (categorizing Judge Newman’s approach as being an “end-run” around that scheme).  The Government also counters Judge Newman’s reliance Bowe v. United States, 146 S. Ct. 447 (2026), regarding the Court’s reach of reviewing the statute as being more properly limited to “the reach of a statutory exception to this Court’s certiorari jurisdiction, and turned on the specific language of that provision.”

The brief also reminds the Court that there is no disagreement amongst the inferior courts regarding the patent statutory limitation on judicial review of as-applied constitutional claims, citing In re McBryde, 117 F.3d 208, 220 n.7 (5th Cir. 1997), cert. denied, 524 U.S. 937 (1998), and Miller v. Judicial Council, No. 25-2616, 2026 WL 1091647, at *1 (3d Cir. Apr. 22, 2026), further reminding the Court that while it will have the opportunity for review should such conflict arise “none has happened in the 40-plus years since the Act was passed.”

Additional arguments suffer the same fate; the brief counters Judge Newman’s argument that the Court’s review is necessary to ensure judicial independence by reference to the statutory provisions for Judicial Conference review and asking why that review is “insufficient to protect judges.”  In view of the statistics that “[m]ost of those aggrieved by judicial conduct and disability decisions made by Chief Judges or Judicial Councils are not judges, but rather litigants,” the brief warns that “Congress did not intend to open the federal courts to a flood of as-applied challenges to sensitive decisions made under the Act,” which would “not only burden the court system, but expose the judges targeted in such challenges to the possible need to attempt to participate to defend their conduct or abilities in such suits.”

Interestingly, the brief relies in part on a blog post by Dennis Crouch regarding a subtext of the contretemps against Judge Newman relating to her role as “The Great Dissenter” and how collegial displeasure with her dissenting opinions may have played a role in any animus her colleagues have been accused of directing towards the Judge (see Dennis Crouch, “Federal Circuit Dissent Rates Collapse After Newman’s Removal,” Patently-O (Mar. 3, 2026)).  Unfortunately, Mr. Crouch also asserted in the post that “it is ‘unlikely’ that ‘misconduct proceedings themselves exerted a chilling effect.’”