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Essays · Judicial Immunity

Why Judicial Immunity Must Be Abolished — In-Depth Analysis

The one job with no consequences — the full, in-depth analysis

July 26, 2026

Executive Summary

A judge who violates your constitutional rights owes you nothing. Not if the violation was deliberate. Not if it was malicious. Not if the judge was paid to do it. The Supreme Court has said so in plain language on three separate occasions, and the rule holds regardless of what the ruling cost you.

That is the doctrine of absolute judicial immunity, and this essay makes the case that it should end.

The problem. No mechanism exists to hold a judge personally answerable for abusing judicial power. Damages are barred. Injunctions were barred by Congress in 1996. Discipline is administered by judges to judges and produced formal sanction against zero federal judges out of 1,713 complaints resolved in fiscal year 2025. Impeachment has removed eight judges in 236 years. Appeal reviews the ruling and costs the judge nothing.

The justifications. Defenders say immunity protects independence and prevents a flood of retaliatory suits. Both concerns are real, and neither explains a rule this broad. Independence means freedom from political pressure, and a rule tailored to it would protect good-faith error while exposing deliberate wrongdoing. The litigation-flood argument was made about police officers and prosecutors too, and courts manage those cases with tools that already exist.

The harm. Absolute immunity has protected a judge who approved the secret sterilization of a fifteen-year-old, a judge alleged to have ordered police to beat a public defender, a judge alleged to have taken a bribe for an injunction, and two judges who accepted $2.8 million to send roughly 2,300 children to for-profit jails.

The comparison. Police officers, prosecutors outside their advocacy role, doctors, lawyers, engineers, and accountants all answer for the harm they cause. So do judges in England, France, Italy, and every European Union member state, under rules built to preserve independence without eliminating remedy. American judges are the outlier.

The replacement. Congress can end absolute immunity in one sentence, exactly as it amended § 1983 in 1996 to narrow relief against judges. Qualified immunity, an independent disciplinary body that is not staffed by the bench, a private right of action for documented misconduct, term limits, and personal liability for the cost of correcting an unlawful ruling would together restore what Reconstruction Congress wrote and the Supreme Court took away.

I. The Core Problem: Nobody Answers

Suppose a judge decides your case against you because you filed a complaint against him. Suppose he enters an order he knows the law forbids. Suppose he holds a hearing you were never told about, or takes something from you without letting you speak, or ignores evidence he was required to consider. Suppose, at the extreme, that he was paid.

You have no remedy against him. Not a reduced remedy or a difficult remedy. None.

The Supreme Court has said this in language that leaves nothing to interpretation. Judicial immunity "is not overcome by allegations of bad faith or malice." Mireles v. Waco, 502 U.S. 9, 11 (1991). It "applies even when the judge is accused of acting maliciously and corruptly." Pierson v. Ray, 386 U.S. 547, 554 (1967). A judge "will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority." Stump v. Sparkman, 435 U.S. 349, 356 (1978). So long as the act was judicial in character and not taken in the complete absence of all jurisdiction, the shield holds.

The clearest illustration is Dennis v. Sparks, 449 U.S. 24 (1980). A judge of the 229th District Court of Duval County, Texas enjoined oil production from leases owned by the plaintiffs; an appellate court later dissolved the injunction as illegally issued. The allegation was that "an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge." The Supreme Court allowed the case to go forward against the private parties who had paid, on the ground that they were acting under color of state law. It noted along the way, without apparent difficulty, that "it is of no consequence in this respect that the judge himself is immune from damages liability." The people who handed over the money could be sued. The person who took it could not.

Understand what that means for how a claim is decided. When a judge invokes immunity, the court does not ask whether the allegations are true. It asks only whether the act was of a judicial character. If it was, the case ends there, and the facts are never examined by anyone. Motive is not merely hard to prove. It is legally irrelevant, which is a different and far more serious thing.

The remedies that are supposed to fill the gap

Courts and commentators answer this objection with a list. The list has four items, and each one can be checked.

Appeal. An appellate court reviews the ruling. It imposes nothing on the judge who made it, and it is available only to a party, only within strict deadlines, and only to someone who can pay for it. It cannot restore fertility. It cannot return time spent in a cell. Justice Powell identified the deepest flaw in Stump v. Sparkman: where a judge's own conduct prevents a reviewable record from ever coming into existence, "the underlying assumption of the Bradley doctrine is inoperative." 435 U.S. at 369 (Powell, J., dissenting). The cases in which damages matter most are precisely the cases in which appeal is least available. Injunctive relief. This existed for twelve years. In Pulliam v. Allen, 466 U.S. 522 (1984), the Supreme Court held that judicial immunity does not bar an order directing a judicial officer to stop an unconstitutional practice going forward. Congress reversed that holding in section 309 of the Federal Courts Improvement Act of 1996, which amended § 1983 itself. The statute now ends with these words:

"except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

The same Act amended 42 U.S.C. § 1988(b) so that a judicial officer "shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction" — a standard almost identical to the immunity threshold itself. The judiciary lobbied for the change through a decade of successive bills. The one narrow avenue the Supreme Court had left open was closed by statute at the request of the people it exposed.

Discipline. Under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364, anyone may file a complaint against a federal judge. Federal judges investigate it and federal judges decide it. The Act does not reach the Supreme Court at all. Here is what the system produced in the twelve months ending September 30, 2025, according to the Administrative Office of the U.S. Courts' own Table S-22:

  • 1,857 complaints commenced; 1,713 terminated as final
  • 1,700 dismissed in whole or in part, of which 1,454 were dismissed as "merits-related"
  • 644 petitions filed asking a judicial council to review a chief judge's dismissal
  • 644 of those petitions denied and the chief judge's disposition affirmed
  • 0 matters returned to a chief judge for further consideration
  • 0 censures or reprimands
  • 0 suspensions of assignments
  • 0 actions against a magistrate judge
  • 0 removals of a bankruptcy judge
  • 0 requests for voluntary retirement
  • 0 certifications of disability Four complaints ended in "voluntary corrective action." Three were referred to a special committee. Eighteen alleged the acceptance of a bribe, gift, or favor.

The "merits-related" category deserves particular attention, because it does most of the work. A complaint that a judge decided a case wrongly, unlawfully, or in disregard of the record is not treated as misconduct at all. It is treated as a disagreement with a ruling, and disagreements with rulings belong on appeal. So the complaint about the ruling goes to discipline, which will not hear it, and the appeal goes to the appellate court, which will not touch the judge. Neither forum ever reaches the person. That is the architecture rather than a defect in it.

State systems are not better; they are merely less visible. In 2020, Reuters reporters Michael Berens and John Shiffman published "The Teflon Robe," a nationwide review of 1,509 cases from 2008 through 2019 in which judges resigned, retired, or were publicly disciplined after accusations of misconduct. They identified an additional 3,613 cases from 2008 through 2018 in which states disciplined judges while withholding from the public the details of the offense, including the judge's name. Nine of every ten sanctioned judges returned to the bench.

What the system does in the rare case that survives every filter is worth studying, and one such case is now fully documented.

On February 11, 2026, the Judicial Council of the Eleventh Circuit resolved Complaint No. 11-25-90212 against U.S. District Judge Eleanor L. Ross of the Northern District of Georgia. A special committee found three separate instances of judicial misconduct: an extramarital affair with a law enforcement officer conducted partly through sexual activity in her chambers, at times while law clerks were present and within earshot; attendance at a partisan political event; and a lack of candor consisting of false statements to Chief Judge William Pryor and to her own chief district judge, including a false denial of the sexual conduct. The committee wrote that "there is no excuse for the egregious falsities the Subject Judge submitted to fellow judges."

The proceeding started with a term law clerk who sat immediately outside the judge's office. Judge Ross's initial response suggested the clerk was retaliating over performance criticism and might have fabricated the allegations.

The sanction was a private reprimand, plus agreements to apologize in writing to six former clerks, to forego service as chief judge if she became eligible, and to stay off Judicial Conference committees. The order did not name her. Her identity became official only on June 10 and 11, 2026, four months later, and only because four of the clerks objected that the three-sentence apology letters they received did not comply with the Council's order. The replacement letter she sent on June 11 contained the sentence: "I [apologize] for my false accusation against you." Two members of Congress have since filed resolutions to impeach her.

A judge lied to two chief judges about conduct that drove a law clerk out of her chambers, blamed the clerk for inventing it, and received a confidential letter.

Impeachment. Since 1789 the House has impeached fifteen federal judges. The Senate has convicted eight. The most recent conviction was in 2010. That is the mechanism the Supreme Court pointed to in 1872 when it told injured citizens that a corrupt judge "can only be reached by public prosecution in the form of impeachment."

Four remedies, and the honest accounting comes to this: appeal does not touch the judge, injunctions were legislated away, discipline is self-administered and produced nothing in the most recent year on record, and impeachment removes a judge roughly once every thirty years. The Supreme Court traded away the individual's right to sue in exchange for these. The trade has not been honored.

II. The Justifications, Examined

The defense of judicial immunity rests on two arguments. Both are serious, and neither supports a shield this wide. "Judges must be free to decide without fear"

The independence argument is the oldest and the strongest. Justice Field stated it in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872): a judicial officer must "be free to act upon his own convictions, without apprehension of personal consequences to himself." A judge who worried about being sued by whichever party lost might shade his rulings to avoid it, and a judiciary that decides cases with an eye to personal exposure is not deciding them at all.

The problem is the fit between the concern and the rule. Independence, properly understood, means freedom from political pressure and freedom from retaliation for lawful decisions. It has never meant freedom from responsibility for deliberate wrongs. A rule calibrated to the stated rationale would shield good-faith error and expose knowing misconduct — which is exactly what qualified immunity does for every other government official in the country.

The rule the courts built shields everything. The corrupt ruling and the mistaken one. The retaliatory order and the debatable one. The knowing constitutional violation and the honest misjudgment. Protection that far exceeds its justification requires a different explanation, and the doctrine's history supplies one. Judicial immunity was created by judges, expanded by judges, and is applied by judges to shield judges. At no point in that development did the people harmed by judicial misconduct have any voice in defining the protection's scope.

Courts enforce a rule against exactly this arrangement when anyone else is involved. "No man can be a judge in his own case," the Supreme Court has said, and the law endeavors to prevent "even the probability of unfairness." In re Murchison, 349 U.S. 133, 136 (1955). Asking judges whether judges should be accountable is an inquiry whose answer was never in doubt.

There is also a plain historical answer. Immunity in its original form protected judges from the King — from being hauled before the Crown's own prerogative courts and second-guessed by tribunals under royal control. That was the actual holding of Floyd v. Barker in 1607. Modern American immunity almost never shields a judge from executive interference. It shields a judge from an ordinary person who has been injured. The rationale and the application now point in opposite directions, and the transplant was never explained.

The strongest evidence against the independence argument comes from the courts themselves. Judges have always been subject to criminal prosecution for acts committed under color of law. The Supreme Court confirmed this eight years after Bradley, when it allowed a Virginia county judge to be indicted in federal court for excluding Black citizens from his jury lists. Ex parte Virginia, 100 U.S. 339 (1880). It confirmed it again in United States v. Lanier, 520 U.S. 259 (1997), reinstating the conviction of a Tennessee chancery judge who had sexually assaulted five women. If exposure to a federal criminal indictment does not destroy judicial independence, exposure to a damages suit brought by a person the judge injured cannot plausibly do so either.

"The courts would drown in retaliatory lawsuits"

The second argument is practical. Field put it best: "Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action." Allow a malice exception, and every losing party will plead malice.

This prediction has been made before, about other officials, and it can be tested against what happened.

The same warning accompanied the extension of § 1983 liability to police officers, and to prosecutors for their investigative and administrative conduct. Police departments and prosecutors' offices did not stop functioning. Courts developed screening mechanisms that dispose of meritless claims early, and those mechanisms are already in place: heightened pleading standards under Ashcroft v. Iqbal, 556 U.S. 662 (2009), summary judgment, Rule 11 sanctions for baseless filings, and qualified immunity itself, which is resolved at the outset of a case and is immediately appealable precisely so that officials are not put to the burden of discovery in weak cases.

Every one of those tools would be available in a suit against a judge. A litigant who alleges nothing more than an adverse ruling would lose on the pleadings, as such a litigant loses today against every other official in government.

The deeper problem with the argument is what it concedes. It says that some meritorious claims must be extinguished in order to avoid the administrative cost of sorting them from meritless ones. That is a choice about who bears the cost of imperfect screening, and the current answer is that the injured person bears all of it. Courts do not accept this reasoning anywhere else. Hospitals face frivolous malpractice suits and remain liable for real ones. Employers face meritless discrimination claims and remain liable for genuine ones. Only for judges has the difficulty of separating good claims from bad been treated as a reason to hear none of them.

"Immunity protects the public, not the judge"

A third argument appears in the older cases, drawn from the English decision Scott v. Stansfield (1868) and quoted approvingly in Bradley: the rule exists "not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public."

Whatever force this had in 1868, it is now an empirical claim, and the evidence runs the other way. The public's interest in the courts consists of accurate decisions, honest judges, and remedies when something goes wrong. Absolute immunity delivers the third of these to no one, and the first two rest entirely on the character of individuals whom the system has deliberately insulated from consequence.

A consequence-free environment teaches. A judge who observes across decades that errors, rule violations, and even deliberate abuses produce no personal repercussions will absorb that lesson, whatever her initial commitments. Colleagues who watch misconduct go unremedied learn where the institution's real tolerance lies. This is not speculation about judges in particular. It is the premise underlying every accountability mechanism the law imposes on everyone else, and the judiciary's exemption from it is a wager against human nature that no other American institution has been allowed to make.

III. What the Doctrine Has Protected

The strongest argument against absolute immunity is the record of what it has excused. These are not fringe applications. They are the leading cases, decided by the highest courts, and they define the doctrine's actual scope.

A fifteen-year-old sterilized without notice, hearing, or a case file

On July 9, 1971, a woman named Ora Spitler McFarlin presented Judge Harold D. Stump of the DeKalb County Circuit Court in Indiana with a document captioned "Petition To Have Tubal Ligation Performed On Minor and Indemnity Agreement." She swore that her fifteen-year-old daughter, Linda Spitler, was "somewhat retarded" — while conceding in the same document that Linda attended public school and had been promoted with her class every year — and had been staying out overnight with "older youth or young men." She asked the court to authorize sterilizing her daughter, and in the same instrument agreed to indemnify the doctor and hospital against any lawsuit that followed.

Judge Stump approved it that day. No docket number was assigned. Nothing was filed with the clerk. Linda received no notice, no hearing was held, and no guardian ad litem was appointed to speak for her. She was never told the proceeding happened.

Six days later she entered DeKalb Memorial Hospital, having been told she was having her appendix removed. The following day she was sterilized. She learned the truth roughly two years afterward, when she married and could not conceive.

The Supreme Court held Judge Stump absolutely immune. Stump v. Sparkman, 435 U.S. 349 (1978). Indiana had no statute authorizing what he did, but the Court found it "more significant that there was no Indiana statute and no case law in 1971 prohibiting a circuit court... from considering a petition of the type presented to Judge Stump." The absence of a prohibition became a grant of power. As for the procedure: "A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors."

Justice Stewart, joined by Justices Marshall and Powell, dissented. He pointed out that the case lacked every feature immunity exists to protect: "There was no 'case,' controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decisionmaking." He added the line for which the dissent is remembered: "A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity."

A lawyer allegedly beaten on a judge's order

In November 1989, Los Angeles County public defender Howard Waco missed the initial call of Judge Raymond Mireles' morning calendar. Waco alleged that the judge, "angered by the absence of attorneys from his courtroom," directed police officers "to forcibly and with excessive force seize and bring plaintiff into his courtroom"; that officers seized him with unreasonable force, dragged him backward out of another courtroom, cursed him, called him "vulgar and offensive names," and slammed him through the doors into Judge Mireles' courtroom; and that the judge "knowingly and deliberately approved and ratified" all of it.

The Ninth Circuit held that ordering the use of excessive force is not a judicial act. Without briefing and without argument, the Supreme Court summarily reversed. Mireles v. Waco, 502 U.S. 9 (1991) (per curiam). The Court conceded the point in the course of rejecting it: "Of course, a judge's direction to police officers to carry out a judicial order with excessive force is not a 'function normally performed by a judge.'" Immunity attached anyway, because courts must examine "the particular act's relation to a general function normally performed by a judge" rather than the act itself.

Justice Stevens dissented with a distinction the majority never engaged: the judge "ordered them to bring respondent into his courtroom, and he ordered them to commit a battery. The first order was an action taken in a judicial capacity; the second clearly was not." Justice Scalia, joined by Justice Kennedy, dissented separately, writing that "I frankly am unsure whether the Court's disposition or Justice Stevens' favored disposition is correct; but I am sure that, if we are to decide this case, we should not do so without briefing and argument."

Two judges, $2.8 million, and roughly 2,300 children

Between 2003 and 2008, Judges Mark A. Ciavarella, Jr. and Michael T. Conahan of Luzerne County, Pennsylvania accepted approximately $2.8 million connected to two for-profit juvenile detention facilities. Conahan helped shut down the county-run detention center. Ciavarella, presiding over juvenile court, enforced a zero-tolerance policy that fed children into the private ones. Children as young as eight were detained, many of them first offenders, many without counsel, for conduct as minor as truancy and petty theft.

Ciavarella was sentenced to 28 years in federal prison and Conahan to more than 17. The Pennsylvania Supreme Court vacated roughly 4,000 juvenile adjudications involving more than 2,300 children, holding that it could not have confidence that any juvenile matter Ciavarella handled during the period had been tried fairly.

In the victims' federal civil rights case, the judges' courtroom conduct was held absolutely immune. The district court held that the delinquency determinations and the sentences were judicial acts, that Conahan's orders were judicial acts, and that "the alleged motivations, be they corrupt or with malice, are irrelevant to this determination." Wallace v. Powell, No. 3:09-cv-286, 2009 WL 4051974 (M.D. Pa. Nov. 20, 2009). Liability attached only to conduct outside the courtroom: the agreements with the facility's owner and builder, the budget maneuvering, and the coercion of probation officers.

The case did eventually produce a judgment. In August 2022, Judge Christopher Conner awarded $106 million in compensatory damages and $100 million in punitive damages to roughly 300 plaintiffs, computing compensatory damages at a base rate of $1,000 per day of wrongful detention. He wrote that the plaintiffs were "the tragic human casualties of a scandal of epic proportions." Several of them had died of overdose or suicide during the thirteen years the case consumed, and counsel did not expect the judges to hold assets sufficient to satisfy any part of the award. In December 2024, President Biden commuted the remainder of Conahan's sentence.

This is the best outcome the current system has ever produced. It required a federal racketeering prosecution, an extraordinary intervention by a state supreme court, and thirteen years of civil litigation — and the sentencing decisions themselves, the acts that put children in cells, remained absolutely immune throughout.

The pattern in the exceptions

Courts have carved out a handful of exceptions, and the shape of the carve-outs confirms the shape of the enclosure. The exception in each is that the judge stepped outside the case entirely. Forrester v. White, 484 U.S. 219 (1988). Illinois Circuit Judge Howard Lee White was not immune for demoting and discharging probation officer Cynthia Forrester. Arizona Justice of the Peace John J. Thompson was not immune for assaulting Douglas Gregory in his own courtroom, Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974). Suffolk County Judge William M. Perry was not immune for having coffee vendor Thomas Zarcone handcuffed and marched into chambers over a bad cup of coffee, Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978). Tennessee Chancery Judge David Lanier was not immune for sexually assaulting women in chambers, Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996). Illinois Judge William Vanderwater lost immunity for the prosecutorial half of a case in which he arrested Flor Lopez, charged him, convicted him on an allegedly forged guilty plea, and sentenced him to 240 days near midnight in a police station, Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980). Court reporters have no absolute immunity for failing to produce a transcript. Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993).

Employment decisions, transcripts, assault, and prosecuting your own case. Everything a judge does on the bench, in a case, to a litigant remains absolutely immune, however corrupt the motive behind it. When the Ninth Circuit sat en banc to consider Kenneth O. Ashelman's allegation that Mohave County Judge Gary Pope and the county prosecutor had "conspired to predetermine the outcome of judicial proceedings," it held both immune and explained why: "Intent should play no role in the immunity analysis." Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc).

The shield keeps spreading

Because immunity attaches to functions rather than to offices, it has migrated well outside the judiciary. Federal administrative adjudicators have it. Butz v. Economou, 438 U.S. 478 (1978). Prosecutors have it for conduct "intimately associated with the judicial phase of the criminal process," a rule the Supreme Court adopted while acknowledging that it "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Imbler v. Pachtman, 424 U.S. 409, 427, 430 (1976). Immigration judges have it. Under the heading of "quasi-judicial" immunity, lower courts have extended it to court clerks, guardians ad litem, receivers, mediators, probation officers, court- appointed psychologists, and parole board members. Professor Margaret Z. Johns surveyed this expansion and concluded that it "seriously undermines civil-rights enforcement, denies victims a remedy, and hinders the development of constitutional standards." The list of people who cannot be sued grows. The list of people who can seek redress does not.

IV. How Everyone Else Is Held Accountable

The most useful test of any immunity doctrine is comparative. If absolute protection were truly necessary to the performance of a difficult public function, we would expect to find it wherever difficult public functions are performed. We do not.

Other American officials

A police officer who violates a constitutional right may be sued under § 1983 and is protected by qualified immunity, which yields on a showing that the right was clearly established. Officers make life-or-death decisions in seconds, frequently without legal training, and often without any opportunity to consult anyone. They are answerable anyway.

Prosecutors have absolute immunity for advocacy functions and only qualified immunity for investigative and administrative conduct. Legislators have immunity for legislative acts. Governors, cabinet officers, agency heads, and school officials all operate under defined exposure that bends to proof of knowing wrongdoing.

Judges alone enjoy protection that survives allegations of malice, corruption, and bribery. They act with the benefit of time, briefing, counsel on both sides, a written record, and the ability to take a matter under advisement. The officials with the most deliberation and the most individualized power over liberty and property are the least answerable for its abuse. No one has ever offered a persuasive defense of that inversion, and it persists because the tribunal that would have to condemn it is its beneficiary.

Other professions

Every consequential profession in America operates under the shadow of liability, and the quality of the work reflects it. A surgeon who maims a patient answers for it. An engineer whose design fails answers for it. An accountant, a pilot, an architect, a pharmacist, and a lawyer all carry insurance against the harm their errors cause, and all of them make decisions under time pressure, on incomplete information, in fields where reasonable practitioners disagree.

Medicine is the closest analogue, and the comparison is instructive. Physicians face the identical problem judges are said to face: bad outcomes that were nobody's fault, patients who blame the doctor for the disease, and the risk that defensive practice will distort clinical judgment. The profession's answer was not immunity. It was a standard of care, expert review, screening panels in many states, and the discipline of malpractice liability. Medicine also built the feedback loop judging still lacks — the morbidity and mortality conference, in which clinicians examine their own bad outcomes as a matter of routine, because practitioners who never confront the consequences of their decisions do not improve.

Other countries

The claim that judicial independence requires absolute civil immunity would predict that other developed democracies grant it. None of the major ones do.

England and Wales, the source of the American doctrine, never adopted the American version. Justices of the peace remain personally liable for acts done outside their jurisdiction in bad faith. Courts Act 2003, § 32, provides that an action "lies against a justice of the peace in respect of what he does or omits to do... in relation to a matter not within his jurisdiction, if, but only if, it is proved that he acted in bad faith." Section 9(3) of the Human Rights Act 1998 goes further, permitting damages against the Crown for a judicial act done in good faith where compensation is required by Article 5(5) of the European Convention, and where a person was detained because of a judicial act incompatible with Article 6.

France holds the State liable for damage caused by the defective functioning of the justice system, on proof of gross fault or denial of justice, and preserves the State's right of recourse against the individual magistrate. Code de l'organisation judiciaire, art. L141-1.

Italy rebuilt its system in 2015. Under Law No. 117 of 1988 as amended by Law No. 18 of 2015, the interpretation of legal rules and the assessment of evidence cannot in themselves trigger liability, which preserves the core of judicial independence. Liability arises for denial of justice, manifest violation of national or EU law, or misrepresentation of fact or evidence committed with fraud or inexcusable negligence. The injured party sues the State. The State must then bring an indemnity action against the judge, capped at half a year's salary except in cases of fraud.

The European Union as a whole requires member states to compensate individuals for losses caused by a court of last instance that manifestly breaches EU law. Köbler v. Austria, C-224/01 (2003). The Court of Justice reinforced the rule in Traghetti del Mediterraneo, C-173/03 (2006), holding that a member state may not exclude liability for damage arising from a court's interpretation of law or assessment of evidence, and may not confine liability to intentional fault and serious misconduct where doing so would exclude liability for a manifest infringement.

Two features recur across all of these systems. First, none of them permits a losing party to sue a judge over an ordinary adverse ruling; the threshold is set high, and the interpretation of law is protected. Second, none of them leaves the injured person with nothing. The European approach routes liability through the State, which pays the victim and then pursues the judge. The American approach routes the liability nowhere, and the victim absorbs the loss in full.

That difference is a policy choice, not a structural necessity. Judicial independence in the United Kingdom, France, Italy, and Germany is not visibly weaker than in the United States. What is weaker in the United States is the position of the person the judge injured.

V. What Should Replace It

Absolute judicial immunity is a creature of the common law. No legislature enacted it, no constitution requires it, and Congress can modify it in a single sentence — precisely as Congress modified § 1983 in 1996 to strip away injunctive relief. The same drafting power runs in both directions.

A workable replacement has six components. They fit together, and the first is load-bearing.

1. Qualified immunity in place of absolute immunity

The core reform is the rule Justice Davis proposed in dissent in Bradley v. Fisher in 1872 and that governs every other official today: immunity for judicial acts taken in good faith within jurisdiction, and liability where the judge acted maliciously, corruptly, or in knowing violation of clearly established law.

This preserves everything the independence rationale legitimately demands. A judge who makes a debatable ruling, applies an unsettled rule, or simply gets it wrong remains protected. A judge who knows the law forbids what he is doing and does it anyway loses the shield, exactly as a police officer does.

Jennifer's Law 1 states the principle directly: judicial immunity is abolished, and judges and lawyers are fully accountable for their actions. Jennifer's Law 11 extends the same logic to the sovereign immunity that shields the state and the government, on the ground that a republic founded on the premise that government serves the people cannot operate courts in which the government need not answer to them.

2. A private right of action for documented misconduct

Ending absolute immunity accomplishes nothing if the resulting claim is unusable. The replacement should include an express federal cause of action for judicial misconduct, with a defined and demanding trigger: a documented violation of a clearly established constitutional right, a ruling entered without jurisdiction the judge knew he lacked, a proceeding conducted without notice required by law, a decision entered while the judge held an undisclosed conflict, or retaliation against a party for protected conduct.

Pairing the cause of action with a fee-shifting provision matters as much as the right itself. Congress barred fee awards against judicial officers in 1996, and restoring them is necessary to make the remedy real for the people most likely to need it, who are overwhelmingly unrepresented.

3. Personal liability for the cost of correcting an unlawful ruling

Appeal currently transfers the entire cost of a judge's error onto the person the error injured. The litigant pays in money, in years, and in the disruption of a life, while the judge who erred pays nothing and is told the system worked.

Jennifer's Law 8 reverses that allocation. A judge who rules wrongly should personally bear the cost of correcting the error, paid from salary and pension, including compensation to the litigant at professional rates for all time spent obtaining the correction, whether the litigant is represented or appearing pro se. Jennifer's Law 1 attaches a defined financial consequence to demonstrated error: forfeiture of a portion of pension for each appellate reversal, alongside personal responsibility for the costs the error imposed.

The objection is that this will make judges timid. The design answers it. Wrongness is established through the correction process itself, and rulings within the range of genuine legal disagreement survive that process. Liability attaches to rulings that could not withstand review — which is to say, to rulings that failed the judge's one essential duty.

4. An independent disciplinary body that is not composed of judges

Self-policing produces what self-policing always produces. Complaints go to bodies staffed and dominated by judges, proceed in secret, and end overwhelmingly in dismissal. The 2025 federal figures are what that architecture yields: 1,713 complaints resolved, zero sanctions, 644 petitions for review denied out of 644 filed.

A credible replacement would place investigation and adjudication in a body with a majority of non-judge members, would publish dispositions with the judge's name attached, would give complainants standing to appeal a dismissal to a forum outside the judiciary, and would treat a complaint alleging a knowing violation of law as cognizable misconduct rather than deflecting it as "merits-related." The current merits-related exclusion is the single largest disposal chute in the system, and closing it is the most consequential procedural reform available.

Jennifer's Law 17 proposes the sharpest version of this: juries, informed of documented misconduct by the presiding judge, empowered to issue findings of judicial impropriety that trigger review and possible removal. Jurors hold no license the bench can threaten, seek no appointments, and attend no bar functions. They are the one institution in the courtroom that owes the judge nothing.

5. Transparency as the default

Accountability requires a record. Jennifer's Law 13 would publish judicial philosophy and reversal rates. Jennifer's Law 43 would establish an unqualified right to publish judicial misconduct. Jennifer's Laws 44 and 45 would make every filing public and livestream every hearing. Jennifer's Law 12 would require a conflict-of-interest disclosure affidavit in every case.

None of these creates liability by itself. Each one creates the factual record without which liability is unprovable, and each one raises the cost of misconduct in the only currency an insulated official reliably feels, which is exposure.

6. Term limits and a redefinition of the office

Life tenure was accepted for a small federal bench in exchange for independence from political retaliation. It has become a thirty-year career capped by a lifetime pension, held by tens of thousands of judicial officers, insulated from consequence at every step. Jennifer's Law 19 would cap judicial service at eight to ten years in any judicial capacity and restructure the office as a demanding term of public duty rather than a career. That filter alone changes who seeks the job. A bench designed to attract people who want to serve, and to repel people who want to reign, addresses at its source the entitlement that immunity currently protects.

Structuring service as a fixed term also answers the last serious objection to civil exposure. If liability matures at the close of the term, a sitting judge is never distracted by litigation arising from the cases before her, and the concern about deflected attention disappears entirely.

VI. What Happens Next

Reform is available now, and it does not require a constitutional amendment or a change of heart at the Supreme Court.

Congress can act in one sentence. Section 1983 already carries a proviso Congress inserted in 1996 to limit relief against judicial officers. Congress can insert another that abolishes absolute immunity for judicial acts and substitutes the qualified immunity that applies to every other official. It can simultaneously repeal the 1996 bar on injunctive relief and restore Pulliam v. Allen, and repeal the accompanying bar on costs and fees. Nothing in the Constitution stands in the way, because nothing in the Constitution created the doctrine in the first place.

States can act on their own courts. Most judicial misconduct that touches ordinary people happens in state courts — in family court, housing court, probate, traffic, and juvenile proceedings. State legislatures can create a state-law cause of action for judicial misconduct, restructure their conduct commissions to remove judicial majorities, require published dispositions, and open records that are currently sealed by rule rather than by statute.

The record has to be built. Immunity survives partly because the harm it protects is invisible. Every dismissed complaint, every sealed disposition, every order entered without a hearing is a data point that exists nowhere unless someone puts it somewhere. Jennifer's Law 56 urges the continued use of 42 U.S.C. § 1983 for exactly this reason: a suit accomplishes work before any ruling issues, because the filing enters official misconduct into a federal record, and the accumulated record is the raw material of reform.

What readers can do.

• Document what happened to you. Dates, orders, transcripts, filings, and names. Share it through the Share Your Story page so that it becomes part of a public record rather than a private memory. • File the complaint anyway, knowing the likely outcome. The dismissal is itself evidence. A system that dismisses 1,713 complaints and sanctions no one is making an argument on your behalf every time it does so. • Ask your representatives, in writing, one question: will you support amending 42 U.S.C. § 1983 to replace absolute judicial immunity with qualified immunity? It is a yes-

or-no question about a single sentence of statutory text, and the answer is worth recording. • Read the J-Laws and circulate them. The framework is public, it is specific, and it is written for people outside the profession. • Talk about it in plain terms. Most Americans assume that a judge who breaks the law can be sued. When they learn otherwise, the reaction is not partisan.

Conclusion

The question whether absolute judicial immunity should survive cannot legitimately be answered by the judiciary, because the judiciary authored the doctrine, benefits from it, and controls its interpretation. It has to be answered by the people the doctrine leaves without recourse: the litigants whose constitutional rights were violated with no remedy, the families broken by orders entered in disregard of law, the children who went to cells because a judge was paid, and everyone who spent years seeking accountability and learned that the system provides none when the violator wears a robe.

In 1872, two Justices of the Supreme Court wrote that a judge who acts maliciously and corruptly "is, in my opinion, subject to suit the same as a private person would be under like circumstances." They lost by a vote, and no one in the majority ever answered them. A century and a half later the answer is still owed, and the doctrine they objected to has grown to cover conduct they would not have recognized as judicial at all.

A system that demands obedience to law while exempting its own enforcers from that law does not administer justice. It administers hierarchy. Until judicial immunity is abolished, or reduced to the qualified protection every other official receives, American courts will continue to rest on the proposition their architecture currently proclaims: that accountability is for the governed, and never for those who judge them.

Sources and Authorities

United States Supreme Court

• Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872): https://www.courtlistener.com/opinion/ 88468/bradley-v-fisher/ • Ex parte Virginia, 100 U.S. 339 (1880): https://www.courtlistener.com/opinion/90041/ex- parte-virginia/ • In re Murchison, 349 U.S. 133 (1955): https://www.courtlistener.com/opinion/105303/in- re-murchison/ • Pierson v. Ray, 386 U.S. 547 (1967): https://www.courtlistener.com/opinion/107411/ pierson-v-ray/ • Imbler v. Pachtman, 424 U.S. 409 (1976): https://www.courtlistener.com/opinion/109387/ imbler-v-pachtman/

• Stump v. Sparkman, 435 U.S. 349 (1978): https://www.courtlistener.com/opinion/109820/ stump-v-sparkman/ • Butz v. Economou, 438 U.S. 478 (1978): https://www.courtlistener.com/opinion/109932/ butz-v-economou/ • Dennis v. Sparks, 449 U.S. 24 (1980): https://www.courtlistener.com/opinion/110353/ dennis-v-sparks/ • Pulliam v. Allen, 466 U.S. 522 (1984): https://www.courtlistener.com/opinion/111166/ pulliam-v-allen/ • Forrester v. White, 484 U.S. 219 (1988): https://www.courtlistener.com/opinion/111977/ forrester-v-white/ • Mireles v. Waco, 502 U.S. 9 (1991) (per curiam): https://www.courtlistener.com/opinion/ 112655/mireles-v-waco/ • Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993): https://www.courtlistener.com/ opinion/112876/antoine-v-byers-anderson-inc/ • United States v. Lanier, 520 U.S. 259 (1997): https://www.courtlistener.com/opinion/ 118098/united-states-v-lanier/ • Ashcroft v. Iqbal, 556 U.S. 662 (2009): https://www.courtlistener.com/opinion/145905/ ashcroft-v-iqbal/

Lower federal courts

• Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974): https://www.courtlistener.com/ opinion/320506/douglas-gregory-v-john-thompson/ • Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978): https://www.courtlistener.com/opinion/ 353908/thomas-zarcone-v-william-m-perry-james-windsor-robert-j-anderson-and/ • Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980): https://www.courtlistener.com/ opinion/377933/flor-lopez-v-william-vanderwater/ • Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (en banc): https:// www.courtlistener.com/opinion/471857/ashelman-v-pope/ • Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996): https://www.courtlistener.com/opinion/ 726090/vivian-ann-archie-v-david-lanier/ • Wallace v. Powell, No. 3:09-cv-286, 2009 WL 4051974 (M.D. Pa. Nov. 20, 2009) — case history and filings at https://clearinghouse.net/case/11316/ • Wallace v. Powell (M.D. Pa. Aug. 16, 2022) (damages opinion): https:// www.pamd.uscourts.gov/sites/pamd/files/opinions/09v286.pdf

Statutes

  • 42 U.S.C. § 1983, including the 1996 proviso added by Pub. L. No. 104-317, § 309(c): https://www.law.cornell.edu/uscode/text/42/1983
  • 42 U.S.C. § 1988(b), including the 1996 costs-and-fees bar added by Pub. L. No. 104-317, § 309(b): https://www.law.cornell.edu/uscode/text/42/1988
  • 18 U.S.C. § 242: https://www.law.cornell.edu/uscode/text/18/242
  • Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364
  • Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 309, 110 Stat. 3847, 3853: https://www.congress.gov/bill/104th-congress/house-bill/3968

Comparative authorities

• Courts Act 2003 (U.K.), § 32 (immunity for certain acts beyond jurisdiction): https:// www.legislation.gov.uk/ukpga/2003/39/section/32 • Human Rights Act 1998 (U.K.), § 9 (judicial acts): https://www.legislation.gov.uk/ukpga/ 1998/42/section/9 • Code de l'organisation judiciaire (France), art. L141-1: https://www.legifrance.gouv.fr/ codes/article_lc/LEGIARTI000033458641 • Law No. 117 of April 13, 1988, as amended by Law No. 18 of February 27, 2015 (Italy), summarized by the Law Library of Congress: https://www.loc.gov/item/global-legal- monitor/2015-04-09/italy-civil-liability-of-judges/ • Köbler v. Austria, Case C-224/01 (E.C.J. Sept. 30, 2003) • Traghetti del Mediterraneo SpA v. Repubblica italiana, Case C-173/03 (E.C.J. June 13, 2006): https://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX%3A62003CJ0173%3AEN%3AHTML

Government data

  • Administrative Office of the U.S. Courts, Table S-22, Judicial Complaints, twelve months ending September 30, 2025: https://www.uscourts.gov/sites/default/files/document/ jb_s22_0930.2025.pdf
  • Administrative Office of the U.S. Courts, Table S-22, twelve months ending September 30, 2024: https://www.uscourts.gov/sites/default/files/2025-02/jb_s22_0930.2024.pdf
  • Federal Judicial Center, Impeachments of Federal Judges: https://www.fjc.gov/history/ judges/impeachments-federal-judges
  • Judicial Council of the Eleventh Circuit, Order and Special Committee Final Report, In re Complaint No. 11-25-90212 (Feb. 11, 2026): https://www.ca11.uscourts.gov/sites/default/ files/judicial_complaints/11-25-90212%20Judicial%20Council%20Order_0.pdf
  • Committee on Judicial Conduct and Disability, Order Affirming, C.C.D. No. 26-01 (May 22, 2026): https://www.uscourts.gov/sites/default/files/document/c.c.d.-no.-26-01- may-22-2026.pdf
  • Chief Judge William Pryor, Letters to Judge Eleanor L. Ross (June 10 and June 11, 2026): https://www.ca11.uscourts.gov/sites/default/files/judicial_complaints/ 6-10-26%20Letter%20to%20Judge%20Ross%2C%20Second%20Inquiry%20Under%20 Judicial%20Conduct%20Rule%205_0.pdf and https://www.ca11.uscourts.gov/sites/ default/files/judicial_complaints/ 6-11-26%20Letter%20to%20Judge%20Ross%20Determining%20Not%20to%20Identify %20a%20Complaint%20Under%20Rule%205.pdf
  • H.Res. 1346 and H.Res. 1351, 119th Cong. (2026): https://www.congress.gov/bill/119th- congress/house-resolution/1346 and https://www.congress.gov/bill/119th-congress/house- resolution/1351

Reporting and scholarship

  • Michael Berens & John Shiffman, The Teflon Robe: Thousands of U.S. Judges Who Broke Laws or Oaths Remained on the Bench, Reuters (June 30, 2020)
  • Michael Berens & John Shiffman, The Teflon Robe: With "Judges Judging Judges," Rogues on the Bench Have Little to Fear, Reuters (July 9, 2020)
  • Note, Judicial Immunity at the (Second) Founding: A New Perspective on § 1983, 136 Harv. L. Rev. 1456 (2023): https://harvardlawreview.org/wp-content/uploads/ 2023/03/136-Harv.-L.-Rev.-1456.pdf
  • Jeffrey M. Shaman, Judicial Immunity from Civil and Criminal Liability, 27 San Diego L. Rev. 1 (1990): https://digital.sandiego.edu/cgi/viewcontent.cgi? article=1378&context=sdlr
  • Margaret Z. Johns, A Black Robe Is Not a Big Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in Civil-Rights Cases, 59 SMU L. Rev. 265 (2006): https://scholar.smu.edu/cgi/viewcontent.cgi?article=2191&context=smulr
  • Erwin Chemerinsky, Absolute Immunity: General Principles and Recent Developments, 24 Touro L. Rev. 473 (2008)

Jennifer's Laws referenced

  • J-Law 1 — Full Accountability; No Judicial Immunity
  • J-Law 8 — Abolish the Appellate Trap; Hold Judges Personally Liable for the Full Cost of Correction
  • J-Law 11 — End Sovereign Immunity for the State and Government
  • J-Law 12 — Conflict-of-Interest Disclosure Affidavit
  • J-Law 13 — Publication of Judicial Philosophy & Reversal Rates
  • J-Law 17 — Jury Oversight of Judicial Conduct
  • J-Law 19 — Judicial Term Limits
  • J-Law 43 — The Right to Publish Judicial Misconduct
  • J-Law 44 — Public Access to Every Filing
  • J-Law 45 — Livestream Every Hearing
  • J-Law 56 — Exercise Your Constitutional Rights — 42 U.S.C. § 1983