At their private conference on Thursday, the justices are scheduled to consider a petition for review from the oldest active federal judge in the United States, who has been fighting for more than three years to regain her ability to hear and decide cases. Judge Pauline Newman, 98, was suspended by her colleagues on the U.S. Court of Appeals for the Federal Circuit in 2023 over her refusal to provide medical records and undergo testing related to her mental fitness, and she is urging the Supreme Court to clear the way for her suspension to be reviewed in federal court.
Even before the suspension saga began, Newman was a prominent figure in the legal world. She “helped create the Federal Circuit in 1982” and went on to become its “great dissenter,” dissenting nearly 300 times in patent cases over her four decades of service, “more than three times as often as the next-closest judge on the court,” according to The Washington Post, which cited a 2017 study on her work.
Newman contends that those dissents helped motivate her suspension, which she characterizes as a form of “bullying” in her petition for review. But her colleagues, including Federal Circuit Chief Judge Kimberly Moore, counter that the investigation into Newman’s fitness for service and subsequent suspension stem, instead, from concerns about how long it was taking her to complete opinions, her behavior with staff members, and signs of paranoia and memory loss.
In May 2023, while the investigation was in its initial stages, Newman filed the federal lawsuit that led to the petition now before the Supreme Court. She contended that the Judicial Council of the Federal Circuit had violated her due process rights by refusing her request for another circuit to conduct the investigation, that the council had exceeded its authority, and that the statute allowing for judges to be suspended from hearing cases was facially unconstitutional and unconstitutional as applied to her.
A federal district court in Washington, D.C., and the U.S. Court of Appeals for the District of Columbia Circuit held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 barred them from reviewing most of Newman’s claims and rejected the remaining ones. Specifically, they pointed to the Disability’s Act’s section on judicial review, which states that a “judge aggrieved by an action of the judicial council … may petition the Judicial Conference of the United States for review,” but that “orders and determinations” made in the proceedings “shall not be judicially reviewable.”
In her petition for review to the Supreme Court, Newman contends that the D.C. Circuit misinterpreted the Disability Act’s restrictions on judicial review and applied them too broadly. “Nothing” in the act, according to Newman, “purports to prevent litigants from seeking” forward-looking relief that would, for example, bar a judicial council from extending an existing suspension, and the act also doesn’t prevent review of decisions that the council never had the authority to make in the first place. The Judicial Council of the Federal Circuit’s suspension orders amount to such a decision, Newman asserts, because the council “effectively remov[ed] her from office despite the life tenure promised by Article III.”
Newman points to “three expert evaluations” showing that she has “the mental ability of someone decades younger,” and notes that, less than three months before “Moore began pressuring her to resign” over her alleged mental deterioration, she penned a “characteristically excellent” dissent that the Supreme Court later drew on “when it reversed the Federal Circuit” in a case on veterans’ education benefits. Newman urges the Supreme Court to step in and allow judicial review of her claims. As it stands, according to Newman, “[e]very judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.”
In their response to Newman’s petition, which was filed by U.S. Solicitor General D. John Sauer and which is partially redacted, Moore, the two other members of the special committee that investigated Newman, and the Judicial Council of the Federal Circuit assert that the petition fails the Supreme “Court’s criteria for review many times over,” in large part because it raises claims that were not “adequately pressed or passed upon below.” The brief further argues that the claims find no support in the text of the Disability Act, which “broadly provides that ‘all orders and determinations’ by a judicial council or the Judicial Conference ‘shall not be judicially reviewable on appeal or otherwise.’” “‘All’ means all,” Sauer wrote, and the petition “should be denied.”
Newman v. Moore is scheduled to be considered by the justices for the first time at their private conference on Thursday.
