Coming off the Bench: Legal and Policy Implications of Proposals to Allow Retired Justices to Sit by Designation on the Supreme Court

By McElroy, Lisa T.; Dorf, Michael C. | Duke Law Journal, October 2011 | Go to article overview

Coming off the Bench: Legal and Policy Implications of Proposals to Allow Retired Justices to Sit by Designation on the Supreme Court


McElroy, Lisa T., Dorf, Michael C., Duke Law Journal


ABSTRACT

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would violate Article III's requirement that there be "one supreme Court"; and whether the ethical limitations on extrajudicial activities should be the same for active and retired judges and Justices. In addition to relying on published material, we draw on information gleaned from our interview with retired Justice Stevens, who was the original source of the Leahy proposal.

TABLE OF CONTENTS

Introduction

  I. Retired Justices Throughout History and Today

 II. The "Problem" and Potential Solution
     A. Background: The "Rehnquist/Stevens" Proposal
     B. Retirement's Costs
     C. Avoiding 4-4 Splits
     D. Quorums and Institutional Dynamics
     E. Strategic Considerations Under the Leahy Bill
     F. Administrability

III. Is the Leahy Proposal Constitutional?
     A. Service on Lower Courts
     B. Article III's Requirement of One Supreme Court

 IV. Ethical Constraints on Adjudication by Retired Justices
     A. Recusal of Retired Justices Under Existing Law
     B. Retired Justices as Elder Statespersons

Conclusion

INTRODUCTION

In her first term as an Associate Justice of the Supreme Court of the United States, Elena Kagan recused herself from roughly one-third of the cases on the Court's docket. (1) Although Justices do not typically divulge their grounds for recusing, (2) the reason for all of these recusals was obvious: Kagan believed that her participation in various aspects of these cases in her former role as solicitor general created at least the appearance of impropriety. (3) Kagan perhaps could have taken a narrower view and recused herself in fewer cases; nevertheless, once the deed was done, the Court was left shorthanded.

Into the breach stepped Chairman of the Senate Judiciary Committee Patrick Leahy, who introduced a bill' that would lift a New Deal-era prohibition on retired Supreme Court Justices sitting by designation on the high court? Under the Leahy proposal, a majority of the active Justices would have been able to designate a retired Justice to substitute for a recused Justice. (6) The proposal seemed especially timely in autumn 20107 because there were--and as this Article goes to press, continue to be--three retired Justices in good mental and physical condition. (8)

Adoption of the Leahy bill could avoid some 4-4 split decisions, (9) but it answers no pressing need. Indeed, as we explain, implementing the proposal would raise a substantial number of questions of policy, administrability, and constitutionality. Accordingly, we do not endorse the Leahy bill.

Nonetheless, we are sympathetic to the spirit of the Leahy proposal because retired Justices currently represent a valuable and underutilized human resource. The Leahy proposal thus raises the broader question of how retired Justices who wish to remain active in public life may do so consistently with judicial ethics and constitutional constraints. Furthermore, in seeking to draw on the experience and expertise of retired Justices, the Leahy proposal and the others that we discuss in this Article present an opportunity to explore questions about the nature of the office held by active Supreme Court Justices, no less than retired ones.

This Article uses the Leahy proposal to frame discussion of the foregoing issues. …

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