Sen. Patrick Leahy (D-Vt.) is thinking about proposing legislation that would allow a retired U.S. Supreme Court justice to sit in a case when a current justice has recused — in what would be a major shift in how the Court operates.
The idea comes up as Justice John Paul Stevens prepares to join the ranks of retired justices. Leahy, who chairs the Senate Judiciary Committee, said he decided to draft a bill after a recent meeting with Stevens.
“I talked with Justice Stevens, and he raised the question, ‘Could we not have a provision in the law for some mechanism that retired Supreme Court justices could be asked to sit on the Court when there is a recusal?’ ” Leahy said in an interview with The National Law Journal.
“That would make a lot of sense,” he added, “because if you’ve got an eight-member Court, you could easily have 4-to-4 decisions.” In such cases, the lower court’s ruling stands. Leahy said he has prepared a draft of a bill and probably will introduce it eventually. His office later declined to describe its contents or provide a copy.
The threat of a deadlock has loomed over the justices for years whenever one of them considers stepping away from a case. In 2000, Chief Justice William Rehnquist decided to hear an antitrust case involving Microsoft Corp., despite his son’s work for the company in a separate case. In explaining his decision not to recuse, Rehnquist noted “the negative impact that the unnecessary disqualification of even one Justice” might have.
“Not only is the Court deprived of the participation of one of its nine Members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court,” Rehnquist wrote.
Justice Antonin Scalia expressed a similar concern in 2004, when he declined to recuse from a case involving Vice President Dick Cheney. The two went on a hunting trip in Louisiana while the case — related to records from Cheney’s energy task force — was pending.
Recusal generally does not create similar problems for federal courts of appeals, where there are procedures for replacing a disqualified judge.
“We don’t have any provision like that for the Supreme Court,” Leahy said, “and maybe in a modern world we should be considering that.”
Told of the proposal, Sen. Orrin Hatch (R-Utah) said his initial reaction would be to oppose it. Concern over tie votes, he said, is overblown. “A tie vote is still a result,” said Hatch, a former chairman of the Judiciary Committee.
Charles Geyh, a law professor at Indiana University, Bloomington, who studies judicial recusals, said several state supreme courts have procedures for replacing disqualified justices. Adding such a procedure for the U.S. Supreme Court, he said, would be a good practice in terms of judicial administration, but he warned it could encourage gamesmanship.
For example, Geyh said, if federal law required the most-senior retired justice to step in — or the most-junior retired justice — then litigants could strategize over the potential make-up of the Court with or without a recusal. Or if federal law let the chief justice choose the fill-in justice, then the chief justice would be a target of controversy.
“One side-effect of this procedure will be to put enormous political pressure on the disqualification process,” Geyh said. “It ramps up the politicization of judicial disqualification.”
Paul Carrington, a Duke Law School professor who has advocated changes to the Court’s structure, including term limits, said he thinks Leahy’s proposal would be constitutional. Justices and advocates shouldn’t be afraid of change, he said.
“We live in a time and place where there are a lot of people who are sort of sycophants for the way the Supreme Court is and feel that any attempted change is unpatriotic,” Carrington said.
After Stevens retires this summer, there will be three retired justices. Sandra Day O’Connor retired in 2006 and David Souter retired in 2009.