Justice Kagan will recuse herself from approximately one-third of the Court's cases this Term to avoid the conflict (or appearance thereof) created by her previous service as Solicitor General. Recusal creates a special problem for the U.S. Supreme Court, which may end up evenly divided if one of its nine members steps aside. In the lower courts an absent judge can easily be replaced by a colleague, but the same is not true in the Supreme Court.
Or is it? Justice Stevens suggested that retired Supreme Court justices could return to the bench in such cases. Senate Judiciary Committee Chair Patrick Leahy followed up on the idea, introducing a bill that would allow retired justices to sit by designation whenever an active justice is unable to hear a case. (The bill would override 28 U.S.C. § 294(d), which prohibits retired justices from serving by designation on the Supreme Court.)
Professors Michael Dorf and Lisa McElroy have recently posted an article on SSRN discussing the proposal (to be published in Duke Law Journal this fall). After a thorough analysis"“including an interview with Justice Stevens himself"“Dorf & McElroy make a convincing case that the proposal's costs outweigh its benefits.
First, they argue that the bill is "a solution in search of a problem" because 4-4 splits are neither frequent nor terribly troubling. In 2009, the Court split 5-4 in only 16 of 72 cases it decided on the merits. Even in an unusual Term such as this one, they predict that the Court will split 4-4 a few times at most.
Second, Dorf and McElroy are concerned that the proposal would taint recusal decisions. A justice considering recusal would know that one of the retired justices would take her place, and would have a good idea of how any one of those justices would vote on the matter. Consciously or unconsciously, that information would be sure to affect the justice's determination regarding recusal. (And, of course, it might affect counsel's decisions to seek recusal as well.)
Finally, they worry about all the complications of administering such a proposal. If there is more than one retired justice, as is the case today, which one would be selected? Would the retired justice author an opinion? How might the presence of the retired justice alter the deliberations of the group as a whole? Dorf & McElroy conclude that these complications outweigh the minor benefit of avoiding an occasional 4-4 split.
(The article also includes an interesting analysis of the constitutional questions raised by the proposal, which I will not summarize here, but which are well worth reading.)
Although they do not support the Leahy proposal, Dorf & McElroy agree that "retired justices are a valuable resource" that could be better utilized. Others agree. A bill recently introduced by Representative Murphy suggests that retired justices could be employed to assist in deciding whether an active justice should be recused"”thereby taking the decision away from the single justice being asked to step aside, as occurs today. (Disclosure: Along with 100 other law professors, I have signed on to a letter to Congress supporting reforms to the Court’s recusal procedures.)
All of which suggests that Justices O’Connor, Souter, and Stevens should rest up now . . .
Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Mar. 17, 2011, 11:55 AM), http://www.scotusblog.com/2011/03/academic-round-up-65/