dissenting.
The Congress, which created the lower federal courts, also created a Judicial Council for each circuit composed “of the circuit judges for the circuit, in regular active service.” 28 U. S. C. § 332. The Council “shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit.” Ibid. And Congress directed that “[t]he dis*130trict judges shall promptly carry into effect all orders of the judicial council.” Ibid.
Petitioner, Stephen S. Chandler, is a federal district judge of the Tenth Circuit. On December 13, 1966, the Council, composed of five judges of the Court of Appeals, entered an order that “until the further order of the Judicial Council, the Honorable Stephen S. Chandler shall take no action whatsoever in any case or proceeding now or hereafter pending in the United States District Court for the Western District of Oklahoma; that all cases and proceedings now assigned to or pending before him shall be reassigned to and among the other judges of said court; and that until the further order of the Judicial Council no cases or proceedings filed or instituted in the United States District Court for the Western District of Oklahoma shall be assigned to him for any action whatsoever.”
Petitioner filed a petition for prohibition and/or mandamus, and sought a stay of the order of the Council. The Court denied relief stating that the order was “entirely interlocutory in character pending prompt further proceedings.” 382 U. S. 1003. Mr. Justice Black and I dissented. On February 4, 1966, the Council entered an order allowing petitioner to continue to sit on cases filed and assigned as of December 28, 1965; but it apportioned all subsequent cases among the remaining judges. The Council stated that its order of February 4, 1966, superseded its order of December 13, 1965. By a subsequent order the Council directed that new judicial business would not, until further order, be assigned to petitioner.
I
This case has been and continues to be the liveliest, most controversial contest involving a federal judge in modern United States history.
*131The order of February 4, 1966, was made by the Council on the basis of an alleged “disagreement” among the district judges on one side and Judge Chandler on the other over the reassignment of cases previously assigned to Judge Chandler on December 28, 1965. The Council authorized Judge Chandler to sit on cases assigned to him prior to December 28, 1965; and it assigned to the other district judges all cases filed after that date.
Judge Chandler on the eve of that order, January 24, 1966, agreed to acquiesce in the assignment of new cases to the other district judges. But he disagreed with any action concerning “my pending cases.” As to them he said: “There is no provision of law that grants a Judicial Council jurisdiction over cases pending before a judge in the various stages of the judicial process after valid assignment to him. I consider it my duty to continue to assert my exclusive jurisdiction over these cases, and shall do so.”
Since the order of February 4, 1966, said that all cases “assigned to Judge Chandler as of December 28, 1965, shall remain assigned to him,” and since Judge Chandler did not object to the later cases being assigned to others, the then Solicitor General (now Mr. Justice Marshall) suggested in a memorandum that the case had become moot.
But the Solicitor General in a later memorandum filed here March 17, 1966, agreed “that the case can no longer be deemed moot” because of Judge Chandler’s continuing, expressed disagreement with the order of February 4, 1966.
As noted, the original action against Judge Chandler was taken under 28 U. S. C. § 332. The action taken February 4, 1966, was under 28 U. S. C. § 137, which provides in part:
“If the district judges in any district are unable to agree upon the adoption of rules or orders for *132that purpose the judicial council of the circuit shall make the necessary orders.”
But there was no disagreement among the district judges and no power of the Council to act under 28 U. S. C. § 137. That was precisely the strategy that Judge Chandler selected so that if the feud against him continued, it would have to be waged under 28 U. S. C. § 332. But the Council did not oblige. It recited in its order of February 4, 1966: “In the circumstances a disagreement exists as to the division of business and the assignment of cases in the Western District of Oklahoma.”
If a disagreement existed on February 4, 1966, it existed after Judge Chandler’s so-called “acquiescence” which was expressed in the letter of January 24, 1966. The entire ground is thus swept out from under the mootness argument. In spite of Chandler’s “acquiescence” the Council considered the case a live controversy and Chandler has contested the February 4, 1966, order ever since it issued. His opposition and the continuing raging controversy led the former Solicitor General to concede that the case had not become moot. Nor does the Council, even at this late date, make any such suggestion. Nor does the present Solicitor General.
The Court holds that because Judge Chandler refused to express to the Council his disagreement with the February 4, 1966, order, he failed to exhaust a possible means for obtaining the relief he now seeks in this Court. Had he disagreed, however, he would have vested the Council with authority to act under § 137, and that was precisely what he wanted to avoid. As Mr. Justice Harlan points out, the whole basis for Judge Chandler’s attack is “that it is illegal for the Council to deprive him of new cases, and equally so for the Council to condition his access to new cases upon his making a request to it that is tantamount to a form of a *133certification of disagreement under § 137.” The Court states that by not certifying disagreement to the Council Judge Chandler is apparently attempting “to have it both ways.” It seems clear, however, that the Court’s opinion now allows the Council “to have it both ways” — for unless Judge Chandler certifies disagreement with the February 4, 1966, order, he is barred from relief in this Court; and if he seeks relief from the Council by disagreeing with its order, he concedes jurisdiction in the Council for its actions under § 137. Nothing in Rescue Army v. Municipal Court, 331 U. S. 549, relied on by the Court, compels this result.
For the reasons fully stated by Mr. Justice Harlan, in Part I of his opinion, the case is ripe for decision and we have no excuse for declining to decide it.
II
Our first substantial question is whether this is a “case” or “controversy” within our jurisdiction. As Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 175:
“To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable [the Court] to exercise appellate jurisdiction.
“It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”
The question therefore is whether a judicial council is a lower court or inferior tribunal whose decisions are reviewable in the exercise of our appellate jurisdiction. A judicial council is only the court of appeals for a named circuit sitting en banc. These councils were created to place “responsibility for judicial administra*134tion where it belongs — with the judiciary.” H. R. Rep. No. 702, 76th Cong., 1st Sess., 4. Chief Justice Groner of the Court of Appeals for the District of Columbia, who helped draft the bill that was enacted, explained it as follows to the Senate:1
“To [give the administrative officer any supervision or control over the exercise of purely judicial functions] would be to destroy the very fundamentals of our theory of government. The administrative officer proposed in this bill is purely an administrative officer. ... It is his duty to observe and see that whatever is wrong in the administration of justice, from whatever sources it may arise, is brought to the attention of the judicial council that it may be corrected, by the courts themselves. That is, as I respectfully suggest, as it ought to be.” (Italics added.)
The Council by 28 U. S. C. § 137 is under a duty to “make the necessary orders” in case the district judges are “unable to agree upon the adoption of rules or orders for that purpose.” The Council directs the district judges to carry out certain measures. That is indeed the role of a judicial entity. Only members of the Court of Appeals are members of the Council. Those sitting on the Council do not even change their hats. Expediting the flow of cases to the dockets of district judges is wholly in line with the judicial function. We stated in Textile Mills Corp. v. Commissioner, 314 U. S. 326, 332:
“There are numerous functions of the court, as a 'court of record, with appellate jurisdiction,’ other than hearing and deciding appeals. Under the Judicial Code these embrace prescribing the form of *135writs and other process and the form and style of its seal (§ 122); the making of rules and regulations (§ 122); the appointment of a clerk (§ 124) and the approval of the appointment and removal of deputy clerks (§ 125); and the fixing of the ‘times’ when court shall be held. § 126.”
Some functions performed by a Judicial Council may be “administrative.” But where, as here, it moves to disqualify a judge from sitting, removing him pro tanto from office, it moves against the individual with all of the sting and much of the stigma that impeachment carries. That action gives rise to a “case” or “controversy” triggered by the Council. The Council is therefore under the circumstances an inferior judicial tribunal over which we have appellate jurisdiction where a “case” or “controversy” arises. On that assumption, it is not seriously argued that mandamus is an inappropriate remedy under the All Writs Act.2
The order of December 13, 1965, may have been qualified but it has not been erased. Petitioner still is disqualified to sit on incoming cases. He still carries the stigma of the brand put on him by the Council. We should remember that the cessation of illegal conduct does not make a case moot:
“A controversy may remain to be settled in such circumstances . . . e. g., a dispute over the legality of the challenged practices. . . . The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.” United States v. W. T. Grant Co., 345 U. S. 629, 632.
*136Ill
An independent judiciary is one of this Nation’s outstanding characteristics. Once a federal judge is confirmed by the Senate and takes his oath, he is independent of every other judge. He commonly works with other federal judges who are likewise sovereign. But neither one alone nor any number banded together can act as censor and place sanctions on him. Under the Constitution the only leverage that can be asserted against him is impeachment, where pursuant to a resolution passed by the House, he is tried by the Senate, sitting as a jury. Art. I, § 2 and § 3. Our tradition even bars political impeachments as evidenced by the highly partisan, but unsuccessful, effort to oust Justice Samuel Chase of this Court in 1805.3 The Impeachment Provision of the Constitution4 indeed provides for the removal of “Officers of the United States,” which includes judges, on “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, § 4.
What the Judicial Council did when it ordered petitioner to “take no action whatsoever in any case or proceeding now or hereafter pending” in his court was to do what only the Court of Impeachment can do. If the business of the federal courts needs administrative oversight, the flow of cases can be regulated. Some judges work more slowly than others; some cases may take months while others take hours or days. Matters of this kind may be regulated by the assignment pro*137cedure. But there is no power under our Constitution for one group of federal judges to censor or discipline any federal judge and no power to declare him inefficient and strip him of his power to act as a judge.
The mood of some federal judges is opposed to this view and they are active in attempting to make all federal judges walk in some uniform step. What has happened to petitioner is not a rare instance; it has happened to other federal judges who have had perhaps a more libertarian approach to the Bill of Rights than their brethren. The result is that the nonconformist has suffered greatly at the hands of his fellow judges.
The problem is not resolved by saying that only judicial administrative matters are involved. The power to keep a particular judge from sitting on a racial case, a church-and-state case, a free-press case, a search-and-seizure case, a railroad case, an antitrust case, or a union case may have profound consequences. Judges are not fungible; they cover the constitutional spectrum; and a particular judge’s emphasis may make a world of difference when it comes to rulings on evidence, the temper of the courtroom, the tolerance for a proffered defense, and the like. Lawyers recognize this when they talk about “shopping” for a judge; Senators recognize this when they are asked to give their “advice and consent” to judicial appointments; laymen recognize this when they appraise the quality and image of the judiciary in their own community.
These are subtle, imponderable factors which other judges should not be allowed to manipulate to further their own concept of the public good. That is the crucial issue at the heart of the present controversy.
All power is a heady thing as evidenced by the increasing efforts of groups of federal judges to act as referees over other federal judges.
*138On June 10, 1969, the Judicial Conference adopted resolutions for the governance of many activities of circuit judges and districts judges. Resolution I provided:5
“A judge in regular active service shall not accept compensation of any kind, whether in the form of loans, gifts, gratuities, honoraria or otherwise, for services hereafter performed or to be performed by him except that provided by law for the performance of his judicial duties.
“Provided however, the judicial council of the circuit (or in the case of courts not part of a circuit, the judges of the court in active service) may upon application of a judge approve- the acceptance of compensation for the performance of services other than his judicial duties upon a determination that the services are in the public interest or are justified by exceptional circumstances and that the services will not interfere with his judicial duties. Both the services to be performed and the compensation to be paid shall be made a matter of public record and reported to the Judicial Conference of the United States.” (Italics added.)
*139In the Ninth Circuit, of which I am Circuit Justice, this resolution was assumed to bar a federal judge from even being an executor of his own mother’s estate, unless of course he got a permit from the other judges. Resolution I apparently required permits for federal judges to teach in a law school — a practice which has paid enormous professional dividends and implicates nothing but the interest and energy of the judge. Justice Joseph Story (who sat here from 1811 to 1845) would, I imagine, have been appalled if he had been told that he could not write any of his many books6 without getting permission from a group of other federal judges. And I imagine that Justice Cardozo, Judge Jerome Frank, and Judge Learned Hand would have felt the same.7
To obtain a permit the other judges must determine if the services are “in the public interest.” Pray, how could they determine that unless they saw the lecture, or the lecture notes, or the manuscript? And whose “public interest” would control? Judges who have not been educated to the needs of ecology and of conservation? *140Judges who still have a “plantation” state of mind and relegate many minorities to second-class citizenship? Judges who have a narrow view of freedom of expression or a broad view of due process? Public issues deal with a vast contrariety of views-; and judges, like other people, are to be found in all parts of the spectrum. How under the Constitution can one judge’s lips be sealed because of the predestined view of other judges? An easy reply is that Resolution I covered only services for “compensation.” But books entail royalties; and tax-wise it is not always easy to disassociate an author from royalties. Even though they go ultimately to charity, they pass through his income tax returns.
It is time that an end be put to these efforts of federal judges to ride herd on other federal judges. This is a form of “hazing” having no place under the Constitution. Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress. But I search the Constitution in vain for any power of surveillance that other federal judges have over those aberrations.8 Some *141of the idiosyncrasies may be displeasing to those who walk in more measured, conservative steps. But those idiosyncrasies can be of no possible constitutional concern to other federal judges.
It is time we put an end to the monstrous practices that seem about to overtake us, by vacating the orders of the Judicial Council that brand Judge Chandler as unfit to sit in oncoming cases. Only Congress can take action, unless the Constitution is amended to allow judges to censor, police, or impeach their fellow judges.
Hearings on S. 188 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 1st Sess., 12-13 (Apr. 4r-5, 1939).
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U. S. C. §1651 (a).
See Trial of Samuel Chase, vols. 1 and 2 (1805, taken in shorthand by Samuel H. Smith and Thomas Lloyd).
State procedures vary. Thus New York by its constitution provides for the removal of judges by the judiciary court, made up of judges. See Friedman v. State, 24 N. Y. 2d 528, 249 N. E. 2d 369.
Resolution I was suspended on November 1, 1969, by the Judicial Conference pending further study, the only residue presently in force being a requirement that a judge who in any quarterly period “receives compensation for non-judicial services in a total amount exceeding $100” shall report the same to a “receiving officer” named by the Chief Justice and acting for the federal judges. In March 1970, the Judicial Conference approved procedures and forms for judges to report outside income pursuant to the Conference Resolution of November 1, 1969. The approved form requires listing of outside income received by the judge, gifts received by the judge or his immediate family in excess of $100, any knowing participation in cases in which the judge or a member of his immediate family had a financial interest in any of the named parties, and all “fiduciary positions” held by the judge, “such as trustee or executor.”
Commentaries on Equity Jurisprudence (2 vols., 1836); Commentaries on Equity Pleadings (1838); Commentaries on the Conflict of Laws (1834); Commentaries on the Constitution of the United States (3 vols., 1833); Commentaries on the Law of Agency (1839); Commentaries on the Law of Bailments (1832); Commentaries on the Law of Bills of Exchange (1843); Commentaries on the Law of Partnership (1841); Commentaries on the Law of Promissory Notes (1845); A Familiar Exposition of the Constitution of the United States (1840); A Selection of Pleadings in Civil Actions (1805).
Justice Cardozo: The Growth of the Law (1931); Law and Literature and Other Essays and Addresses (1931); The Nature of the Judicial Process (1921).
Judge Learned Hand: The Bill of Rights (1958).
Judge Jerome Frank: Courts on Trial — Myth and Reality in American Justice (1949); Not Guilty (1957); If Men Were Angels (1942); Fate and Freedom (1945).
Cf. S. 1506, 91st Cong., 1st Sess., which would amend 28 U. S. C. c. 17, first by creating a Commission on Judicial Disabilities and Tenure, composed of five federal judges in active service; second giving it power to “undertake an investigation of the official conduct of any judge of the United States appointed to hold office under article III of the Constitution to determine whether the conduct of such judge is and has been consistent with the good behavior required by that article;” and third giving it authority to recommend to the Judicial Conference that he be removed from office under the following standard: “Willful misconduct in office or willful and persistent failure to perform his official duties by a judge of the United States shall constitute conduct inconsistent with the good behavior required by article III of the Constitution and shall be cause for the removal of that judge.”