'You'd Better Be Good': Congressional Threats of Removal against Federal Judges


In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature political theory to shed light on the frayed relationship between the legislative and judicial branches. Second, I contend that the public’s growing distrust of the judiciary, rooted in a widespread cultural embrace of criticism as an absolute social good, is contributing to the breakdown between the branches. I argue that this ‘culture of criticism’ enables Congress to threaten removal opportunistically and thereby assert its power over the judiciary. Finally, I consider and reject two frequently espoused solutions to this problem – greater public education about the judiciary and more speech – and conclude that there is no feasible prescription to remedy the current state of affairs.


Constitutional Law | Courts | Criminal Law | Criminal Procedure | Judges | Law and Society | Legal Profession | Legislation

Date of this Version

August 2004