Outside the Beltway

Supreme Court Backup Plan?

Pat Leahy suggests allowing retired SCOTUS Justices fill in when a sitting member recuses himself. A great idea on paper, it won't work in practice.

James Joyner · Tuesday, August 10, 2010 · 7 comments

Apparently, there’s a growing problem with Supreme Court Justices forced to recuse themselves from cases and thereby leaving the possibility of tie decisions.   A novel solution:

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is needed. He’s considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself — or herself — in a particular case.

This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality.

“The highest court in the land is the final word on constitutional law,” Leahy said in a statement to The Washington Post. (Leahy first discussed the idea this summer with the National Law Journal.) “I want justices to feel free to recuse themselves when they have a conflict in a specific case.”

Justices recuse themselves occasionally from cases. The choice is theirs and they rarely explain the reason. Most often it is because of a financial conflict or the involvement of a family member. As the court has changed recently — with four new members in five years — the reason for recusal is increasingly because a justice played a role in the case in the lower courts.

Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Sonia Sotomayor were all previously appeals court judges, and all have had to sit out cases that landed in the high court. In her first term, which concluded in June, Sotomayor recused herself from six cases, for instance, and did not take part in a greater number that the court was considering whether to review.

Elena Kagan, the newest justice, will be absent from the court’s mahogany bench for more than that. She already has identified a dozen cases she worked on as solicitor general that she will not hear as a justice, and more are likely as the court accepts new cases for the term that begins in October.

On its surface, this is a no-brainer.  Retired justices still draw their full salary and occasionally fill in for judges on lower courts.  (Sandra Day O’Connor has apparently been doing with some frequency.)

But, since so many cases are decided narrowly, replacing, say, a liberal judge with a conservative one or vice-versa would be problematic, to say the least.

That is complicated as well. If a lower court wants a retired justice to sit in on a case, it asks the chief justice to make the assignment. But at the high court, allowing the chief justice to choose from the retired justices could, in effect, be giving him two votes. An alternative would be to allow the justices to vote on the replacement. But should the recused justice have a say? Should there be a rotation?

And, at some point, theory steps aside and reality sets in. “It’s an interesting idea,” said James Sample, a Hofstra law professor who has specialized in studying judicial recusals. “The challenge is that it’s so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused justices.”

In other words, the bench currently consists of Stevens, O’Connor and retired justice David H. Souter, all of whom are to the left of the court’s dominant conservatives.

It is as unlikely to think Republicans would think it is a good idea to put them back in the lineup, Sample said, as it is to think Leahy would be as keen on the idea if the available replacements were, say, former chief justices William H. Rehnquist or Warren E. Burger.

I like the notion of the recused Justice picking his fill-in, which would provide the best ideological and temperamental match.   But with three moderate-to-leftist Justices constituting the entire roster of backups, it’s an idea whose time hasn’t arrived.