The conventional story of the federal judiciary’s institutional growth begins with Marbury v. Madison and Chief Justice Marshall’s establishment of judicial review. From there, it proceeds through the history of landmark Supreme Court decisions that pushed back against the power of the political branches and advanced the judiciary’s institutional position. In this familiar story, the judiciary participates in the separation of powers through its case law.
Constitutional case law tells only part of the story, however. In this Article, I examine an additional and significant way in which federal judicial leaders influence the balance of governmental powers–through control over judicial conduct regulation. Historically, federal judicial conduct regulation was limited to the blunt constitutional tool of impeachment. Today, after a half century of reform, a complex regulatory regime addresses a broad range of judicial behavior. This reform process facilitated judicial centralization, fostered a cohesive judicial identity, and bolstered judicial autonomy. I argue that it empowered the judiciary to play an increasingly influential role in the balance of governmental powers.
Dana Remus is Professor of Law, University of New Hampshire School of Law.
