Redressing Judicial Misbehavior: An Integrated Approach to Judicial Immunity

Immunities generate intense public interest and controversy. Whether it is the sweeping presidential immunity that former President Trump has claimed or the qualified immunity that rogue police invoke to evade financial responsibility for their brutality, immunities stand as a highly contested aspect of the American legal system. Judicial immunity incites similar controversy. American judges possess absolute immunity from civil suits for their judicial acts, so victims are barred from seeking civil compensation, even against judges who engage in purposeful or malicious misconduct from the bench. For decades scholars have sought to curtail absolute judicial immunity, but they have overlooked a significant distinction: whereas judges have absolute immunity against civil lawsuits, they have no immunity whatsoever against criminal prosecutions. By wholly ignoring potential criminal liability for wrongful judicial acts, the scholarly critiques of absolute judicial immunity and their proposed reforms miss their mark. This Article provides a comprehensive, holistic exploration of judicial immunity in the context of all lawsuits — civil and criminal — and it proposes reforms that will advance the compelling goals the doctrine is intended to serve. While acknowledging key differences between civil and criminal law that impact the desirability of judicial immunity, this Article concludes that our current binary system of absolute immunity for civil suits and zero immunity for criminal prosecutions is excessively formalistic and misaligns with the important policy goals underlying the doctrine. Consequently, the Article proposes a criminal-law limitation on civil judicial immunity that will (1) more effectively advance the goals that immunity is designed to achieve; (2) harmonize criminal law and civil law immunity rules into a more coherent whole; and (3) avoid the practical difficulties that have doomed previous reform efforts. This Article’s proposals will permit judicial immunity to operate in an integrated fashion with reduced costs and enhanced ability to serve the ends for which it was created.