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[This essay is co-authored with Professor Arthur Hellman and Gabe Roth, Executive Director of Fix the Court. Their biographies are below.]

The Constitution provides only one method to punish federal judges who misbehave: impeachment, which can lead to removal from office. But there is broad consensus that judicial impeachment should be reserved for only the most egregious cases. Instead, Congress crafted a middle ground. A judicial council within the regional circuit can review allegations of misconduct, impose reprimands, and where appropriate, make an impeachment referral to the House of Representatives. Of course, the House retains the power to impeach a judge regardless of what the judicial misconduct process determines.

For the most part, this arrangement works well. But a recent case from the Judicial Council of the Eleventh Circuit, based in Atlanta, represents a complete breakdown of the process. A married judge repeatedly had sex in her chambers with a police officer who worked in her district and then lied in an attempt to cover up her compromising acts. Despite this brazen dishonesty, the judicial council slapped her on the wrist and refused to even publicly name her. Since the judiciary failed to live up to its end of the bargain, Congress needs to open an impeachment inquiry.

Judge Eleanor Ross has served on the federal bench in Atlanta since 2014. As early as 2022, she began an affair with an Atlanta police department officer. Over the course of two years, Judge Ross had sex with the officer at least five times in her judicial chambers. In the abstract, no canon of judicial ethics prohibits adultery. Moreover, a judge could have a relationship with a police officer, so long as she recused from any cases that could create a conflict of interest. But life-tenured judges should avoid any compromising actions that could bring disrepute to the court or place them at risk for blackmail. Yet Judge Ross kept her trysts a secret. The district chief judge learned of her sexual activity only after Judge Ross’s law clerk heard “kissing” and “moaning” sounds from chambers and blew the whistle.

The in-chambers sexual conduct, by itself, may perhaps have been enough to warrant impeachment, but what happened next clearly crossed the line. The chief circuit judge, who by law is responsible for investigating allegations of judicial misconduct, asked Judge Ross about the allegations. Judge Ross lied. She insisted that “I have never engaged in sexual intercourse in my office.” She denied knowing which police officer visited her chambers, even though he signed his name to enter. She charged that her law clerk was trying to retaliate against her. The judge may have even tried to clean a couch cushion that appeared to have been stained with bodily fluids. In sum, the judge repeatedly made false statements to her colleagues and attempted to obstruct the investigation.

The judicial council that investigated this matter laid out the sordid details and concluded that Judge Ross lacked candor. But in the end, Judge Ross’s colleagues gave her only the slightest reprimand. Judge Ross agreed to write vaguely-worded letters of apology to her law clerks. And the judge agreed to skip her turn as chief judge and not to serve on any judiciary-wide committee. Worst of all, the judicial council chose to make her reprimand private, finding that she was extremely apologetic and was unlikely to commit similar conduct in the future. The council report did not even name Judge Ross, although it included so many specific facts that it wasn’t hard to figure out who she was.

The council failed in its duty to police judicial misconduct. So did the national appellate committee that reviewed the council’s decision. Both bodies did not even acknowledge precedent from a similar case. In 2007, Judge Samuel Kent of the Southern District of Texas sexually assaulted court employees, and lied to obstruct the investigation. The judicial council and the Judicial Conference of the United States, whose presiding officer is the Chief Justice of the United States, recommended that Kent should be impeached. The House agreed and unanimously impeached Kent. Kent resigned his judgeship to avoid a certain conviction in the Senate.

To be sure, Judge Kent’s sexual assaults were criminal, while Judge Ross’s adultery was lawful. But several members of the House Judiciary Committee stated that lying to the judicial body investigating the misconduct is by itself an impeachable offense. On these grounds, there is strong reason to conclude that Judge Ross has also committed an impeachable offense.

The House of Representatives should pick up the investigation of Judge Ross where the judicial council stopped. And this matter should not be a partisan affair. Much like with the Kent proceedings, members on both sides of the aisle should recognize that a judge who lies about having sex with a police officer within her district, and then attempts to obstruct the investigation, has disqualified herself from judicial service.

This process also should not be rushed. One deliberative approach can be found in the impeachment inquiry of Judge Thomas Porteous in 2008. The House established a twelve-member task force with six Republicans and six Democrats to investigate the matter. This collaboration would allow the process continues regardless of who holds the gavel following the midterm elections.

We continue to believe that judges should be the first line to investigate judicial misconduct. But if judges are unable to fairly sit in judgment of their peers, or worse, are seen as covering up misdeeds, Congress must exercise its constitutional prerogative. Serving as a life-tenured judge is a privilege and not a right. Judges who abuse that privilege must be willing to face public scrutiny, especially where they create conflicts of interest that could require recusals. Judge Ross should resign, but if she fails to, the impeachment process may help her see the light.

—

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston and is an adjunct fellow at the Manhattan Institute. Arthur Hellman is an emeritus professor at the University of Pittsburgh School of Law; he helped to draft the current version of the judicial misconduct statute and testified as an expert witness at the impeachment hearing on Judge Kent. Gabe Roth is executive director of Fix the Court, which advocates for greater openness and accountability in the federal judiciary.

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I am quite skeptical of the lawfulness of the Environmental Protection Agency’s rescission of the endangerment finding upon which EPA regulation of greenhouse gases under the Clean Air Act is based. It is an aggressive move that stretches administrative law norms and challenges  Supreme Court precedent.

While I am not convinced the endangerment rescission is lawful, I would hardly argue it is unconstitutional or impinges upon religious liberty. The folks at Our Children’s Trust–the group behind the various kids climate suits–feels otherwise. They (along with Public Justice) have filed a challenge to the endangerment finding repeal making such claims.

Last month, in Venner v. EPA, OCT and Public Justice filed a motion to stay the repeal of the endangerment finding alleging the EPA’s action violates the youth plaintiffs’ “fundamental free exercise rights under the Religious Freedom Restoration Act” and their “rights to life and liberties under the Fifth Amendment.”

Longtime readers know that I do not think much of the federal constitutional arguments advanced in the various kids climate cases. Even without recent decisions such as Dobbs I find the claims that the federal government’s failure to control greenhouse gases is a constitutional violation to be outlandish. The idea that federal courts should superintend federal energy policy is hard to fathom–and would be quite hard to contain. Thus it should be no surprise that federal courts (with one exception) have consistently concluded that they lack jurisdiction over these efforts to constitutionalize climate policy–most recently on Wednesday in Lighthiser v. Trump.

The latest filing adds a new wrinkle in that it seeks to add religious liberty claims into the mix. Specifically, the claim is that a failure to mitigate climate change will burden the exercise of the plaintiffs’ religious faith because rising temperatures will make it more difficult to practice their faiths. [I have posted excerpts from the brief below the jump.]

I find this argument to be quite creative, but I am also quite confident that it will go nowhere. (The petition’s claim that the EPA completely failed to respond to comments raising these concerns, on the other hand, does raise a serious administrative law issue, but I have not looked to see if the claim is correct.])

As for the endangerment finding itself, I will have a brief essay in the summer issue of Regulation expanding on some of my concerns about the lawfulness of the EPA’s move. Rest assured, neither the Fifth Amendment nor RFRA is not among them.

From the petitioners motion to stay the endangerment repeal in Venner v. EPA:

The Repeal Rule substantially burdens Petitioners Elena, J.K., M.D., and E.S.’s sincerely held religious beliefs. “Government shall not substantially burden a person’s exercise of religion” unless it can demonstrate the burden furthers “a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. RFRA offers “broad protection for religious liberty” beyond that afforded by the First Amendment. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 (2014); Holt v. Hobbs, 574 U.S. 352, 356 (2015). Thus, Petitioners’ showing of substantial burden under the First Amendment also satisfies RFRA. See id. . . .

The Repeal Rule pressures E.S., J.K., and M.D. to modify their behavior in a way that seriously violates their sincerely held religious beliefs by forcing a choice between adherence to their religious tenets, and protecting their health and safety. Petitioners E.S. and J.K. are observant Jews whose religion requires them to walk to synagogue on the Sabbath. Declarations of L.K. ¶10 (Ex. 20); J.K. ¶¶5-6 (Ex. 21); E.S. ¶¶16-18 (Ex. 19). M.D. is an observant Muslim whose religion requires her to fast during Ramadan. M.D. ¶¶4-7 (Ex. 23); S.A. ¶¶12-13 (Ex. 22). Each Sabbath that is made too hot for E.S. and J.K. to walk safely to synagogue, and each day of Ramadan that is made too hot for M.D. to safely fast and wear hijab, is a day they are prevented from observing important requirements of their religions. E.S. ¶¶12, 22-24; L.K. ¶19; J.K. ¶¶7-9; M.D. ¶¶4-7; S.A. ¶14; Pinsky ¶¶41, 44-46, 58-59; see also L.K. ¶¶25-34 (Sukkot practice harmed); J.K. ¶¶12-14 (same). The Repeal Rule forces E.S., J.K., and M.D. to choose between religious practice and physical safety more frequently than they would otherwise because the Repeal Rule will cause an additional 8.81 gigatons of CO2 pollution to be emitted. Wilson ¶20. This staggering quantity is 1.85 times the United States’ total CO2 emissions in 2024. Running ¶11. This quantity worsens local heat surrounding E.S.’s, J.K.’s, and M.D.’s homes, increasing the number of days that they are prevented from exercising their religious beliefs. Running ¶¶15-34; Wilson ¶¶6-13; Jacobson ¶9; E.S. ¶¶24, 22 (“If I’m not in a minyan, there are some prayers I can’t say.”); J.K. ¶11; M.D. ¶7. The burden is more substantial here than in Hobby Lobby because the pressure for youth to disobey their religion’s requirements comes not from a fine that can be paid, but from physical hazards to bodily health and safety, other inalienable rights. E.S. ¶12; Pinsky ¶¶41-45.

The Supreme Court’s decision4 in Mahmoud v. Taylor confirms that the Repeal Rule substantially burdens E.S., J.K., and M.D.’s religious exercise because it poses “a very real threat of undermining the religious beliefs and practices that the parents wish to instill in their children” and thus is an “objective danger to the free exercise of religion.” 606 U.S. 522, 543, 565 (2025) (holding requiring LGBTQ+inclusive storybooks in school curriculum substantially burdens parents wishing to instill contrary religious beliefs in children) (citation modified). The burden imposed here is more severe than in Mahmoud because the Repeal Rule hinders E.S.’s, J.K.’s, and M.D.’s religious development by preventing their ability to safely engage in core religious practices with their family in community. E.S. is “a young person who is actively trying to develop [his] religious practice[,]” and “losing a Shabbos [Sabbath] service” makes him “less capable of internalizing Jewish Law and integrating it into [his] life.” E.S. ¶23. In J.K.’s family, “[e]ach additional hot Saturday diminishes the habit of attending synagogue regularly, thereby diminishing our closeness to God, our sense of community, and our ability to inspire our children to lead Jewish lives.” L.K. ¶21. This “profoundly distress[es]” J.K.’s mother because it “could impact both [J.K.’s] ability to enjoy the service as well as his ability to transmit this essential knowledge to his future children.” Id. ¶22. M.D.’s mother confirms that extreme heat and climate events have disrupted their religious rituals, and she worries about her daughter’s safety wearing hijab in dangerous heat. S.A. ¶¶9-16. As a parent, she must weigh her children’s immediate health against her obligation to pass down religious traditions and practices “at a crucial time in my children’s religious development as they are entering adulthood.” S.A. ¶¶8-17. The increased localized heat from the GHG emissions from the Repeal Rule will thus “substantially interfer[e] with [Petitioners’] religious development” during their “crucial adolescent stage of development” by limiting meaningful opportunities to learn, practice, and internalize their parents’ religious values. Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).

The Repeal Rule also imposes a substantial burden on Petitioner Elena, a Catholic youth, by forcing her to choose between two sincerely held beliefs: the obligation to procreate, and the obligation to protect the lives of children. Elena ¶¶9 14. Elena cannot do both because the worsening, rather than improving, air pollution and climate conditions created by the Repeal Rule limit the conditions which Elena sincerely believes are necessary for nurturing and protecting children. Elena ¶¶1314; Pinsky ¶¶10-16, 28, 37, 60-62; Wilson ¶¶4-34; Running ¶¶16, 25-50. “It violates my beliefs to bring someone into this world whose life would be burdened with hazardous air quality and increasing extreme and dangerous heat,” because such conditions undermine “life, in utero, for newborns, for growing children, and for mothers[.]” Elena ¶¶13-14; Pinsky ¶¶61-62 (“More babies will be born early or at low weight . . . [a] small number of these babies will also die.”); Wilson ¶¶4-34; Running ¶¶16, 25-50. The Repeal Rule thus substantially burdens Elena’s exercise of her Catholic faith by forcing her to “engage in conduct that seriously violates” her beliefs by making it impossible for her personally to safely practice her faith’s call to procreate and protect life. See Hobby Lobby, 573 U.S. at 720.

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If you want to open a hospital, you have to convince the government that there’s a need for it. And all of the existing hospitals—your potential competitors—get to show up at the hearing and explain why, actually, there’s no real need.

When you have to ask your competitors for permission to open a business, don’t expect to get it. 

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A growing consortium of University of California (U.C.) educators is imploring the state system to consider basic testing standards for STEM applicants. As of Thursday, more than 1,400 U.C. faculty members have signed onto a letter calling for the reinstatement of the SAT/ACT mathematics requirement for STEM majors, citing a dramatic drop in math proficiency. 

The letter, written by four U.C. Berkeley math professors and a law professor, claims that U.C. STEM professors now “observe preparation gaps so severe that instructors must reteach middle-school mathematics while simultaneously teaching the material students need for sciences, engineering, economics, and other quantitatively demanding fields.”

U.C. schools eliminated their standardized test requirement in 2020 in the name of advancing equity. According to U.C. policy, the system “no longer considers SAT or ACT test scores when making admissions decisions or awarding scholarships.” Students can, however, use test scores to meet minimum subject requirements, but “students must first submit the application without scores.” 

On an FAQ page, the open letter clarifies that the math SAT or ACT score “should not automatically admit or reject anyone,” and it should be “one piece of evidence” used when evaluating applications. The scores should be used as a “readiness check, not as a mechanical ranking tool.”

In an op-ed for The Wall Street Journal on Monday, two of the letter’s authors, professors Svetlana Jitomirskaya and Zvezdelina Stankova, emphasized the need to bring back standardized testing. 

“The nonstandardized records we do require from applicants are increasingly inaccurate,” they wrote. “High-school grade inflation has rendered transcripts nearly meaningless.” 

They also noted that the SAT can serve as a “nationally normed check on readiness” in an “era of artificial-intelligence-confected essays.”

In a separate letter published by the Journal, the U.C.’s Academic Senate Chairman Ahmet Palazoglu rightfully pointed out that “college readiness is about far more than admissions standards.” Palazoglu detailed how U.C. has collaborated with K-12 leaders to “strengthen student preparation” and “support student success.”

Bringing back standardized tests would not fully solve the problem of school readiness. But schools should not be dissuaded from requiring baseline standards for students out of fear of being perceived as inequitable. As Reason has pointed out, ample evidence contradicts the idea that test-free or test-optional policies increase inequality. 

“Standardized test scores, while imperfect, are the closest to an objective measure colleges have for making admissions decisions—one that isolates academic achievement from expensive extracurriculars and tutor-polished essays,” wrote Emma Camp for Reason in 2024.

It appears that the University of California is not the only higher ed institution now realizing this. Just last week, Yale joined several elite schools in reversing test-optional policies. In 2024, the school required students to submit SAT, ACT, International Baccalaureate, or Advanced Placement exams, according to The Wall Street Journal. Now, Yale will require students to submit either SAT or ACT scores in the next admissions cycle. 

“SAT and ACT scores are strong predictors of a student’s future Yale academic performance,” said Yale College Dean Pericles Lewis, who served as the chair of the school’s Presidential Council on Yale College Admissions. “When considered thoughtfully as part of a whole person review, they can help identify well-prepared candidates, especially those from socio-economically disadvantaged backgrounds.”

The admissions process will never be perfect, and schools may still debate how much SAT and ACT scores should be weighted against other factors like essays and grades. Asking students to submit test scores so schools can evaluate students’ baseline readiness should not be controversial; professors should be able to instruct at a university level without having to cater to those unprepared for college. Any university system, especially one that depends on public funding, would best serve its students and professors by committing to academic rigor, not revisiting the fundamentals.

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