Are Senior Justices and Judges Unconstitutional?

This month’s issue of the Cornell Law Review will contain my co-authored article (with Ryan W. Scott) entitled “Are Senior Judges Unconstitutional?” I just received the final version of the article from the journal, which I have posted on SSRN, see here. Despite the title, we are not so bold as to argue that senior judges by their very existence or nature are unconstitutional. Indeed, senior status has been around for nearly a century and has functioned pretty well. Instead, we note a number of problems with the current statutory scheme authorizing and regulating senior judges (and Justices).

We make two chief constitutional arguments: (1) the requirement that senior judges (and Justices) be designated and assigned by another federal judge before performing any judicial work violates the tenure protection of Article III; and (2) permitting senior judges (and Justices) to elect senior status, without a second intervening appointment, violates the Appointments Clause.

Of particular interest, the most serious constitutional and statutory problems arise with senior or retired Justices. For instance, 28 U.S.C. s 1 states that the Supreme Court “shall consist of a Chief Justice of the United States and eight associate justices.” At the same time, however, the retirement statute permits Justices electing senior status to “retain the office.” Although there is more than one way to read these two provisions together, one interpretation is that a retired Justice retains the same office before–that of associate justice–and thus the retirement of Sandra Day O’Connor now means that there are ten Justices on the Supreme Court. This same problem applies, with lesser force, to the composition of the lower federal courts as well.

The Appointments Clause problem is also particularly problematic with senior justices. The job of Sandra Day O’Connor looks nothing like her job while she served in active status on the Supreme Court. As a senior or retired Justice, she can never sit on the Court again, either to decide petitions for certiorari or merits cases, and her job largely consists of sitting on the lower courts. Moreover, federal law permits her to satisfy her statutory duties in senior status by performing entirely executive or legislative duties, much like Chief Justice Burger did in 1986 when he retired to serve as chair of the Commission on the Bicentennial of the United States Constitution. Because the differences between senior and active status are so stark, we argue that either a new appointment upon election of senior status is required or that Congress needs to amend the statutory scheme to bring the two offices closer together. I encourage you to read our article if you are interested in the topic and the thoughtful response authored by Judge Betty Binns Fletcher of the United States Court of Appeals for the Ninth Circuit that will appear in the paper copy of the journal.