• Andrew Ramonas
    Lobbying Reporter
  • Beth Frerking
    Editor in Chief
  • David Brown
    Vice President/Editor, ALM
  • Diego Radzinschi
    Photo Editor
  • Jenna Greene
    Senior Reporter
  • Marcia Coyle
    Chief Washington Correspondent
  • Mike Scarcella
    Washington Bureau Chief
  • Todd Ruger
    Capitol Hill Reporter
  • Tony Mauro
    Supreme Court Correspondent
  • Zoe Tillman
    D.C. Courts Reporter

« Prosecution Rests in Robert Wone Case | Main | Washington Lawyers Committee Honors Rep. Conyers, Hogan Lovells Partner »

June 16, 2010



Yeah just what I would want- a retired Scalia or Thomas or Roberts replacing a recused Kagan or Ginsburg....

Too easy to upset the idealogical balance of the court- find another way

Jack Justice

An alternative would be to expand the current membership of the Court (say to 15) with the provision that any case must be heard by a minimum of 9 justices.


What if the theoretically available justice(s) want to remain retired?

What if there are no living retired justices?


Retired justices often continue to work in appeals courts after they retire without extra compensation. Justices O'Connor and Souter have both sat on the 1st Circuit since their retirements.

In fact, to be eligible for any pay raise or cost-of-living adjustment, retired justices and judges are required to perform administrative or judicial services, such as sitting on a circuit court, for the equivalent of three months in a calendar year.

Why shouldn't they be able to sit on the Court again if necessary?

Glen Ashman

It's a very sensible idea and certainly complies with the COnstitution as Congress is given the power to dictate the makeup of the court. I like the comments that suggest a random pick to prevent any appearance of impropriety.

Almost every other court already has a process for this, except the Supreme Court.


It wouldn't be stepping on the Court's powers. The proposal doesn't require a justice to recuse him/herself. It would just provide a mechanism for replacing a justice on a case if there is a recusal. Congress decides when, and if, the Court meets. Why would it overstep the Court's power if it provides for when there is a recusal to avoid a tie?

Tom Norris

To the best of my knowledge, there is separation of powers in the Constitution and it would seem to me that Congress would be stepping into the inherent power of the U.S. Supreme Court by legislatively addressing recusals where the Court could exercise its inherent powers to resolve recusal issues.


So is the clause in Art.III "during their continuance in office" of any meaning? I think once a Justice retires they no longer "continue in office." I believe that the Legislative Branch often forgets that the Judicial Branch is a co-equal one, like the attempts to legislate broadcast of SCOTUS proceedings.

Bill the bureaucrat

Interesting. Couldn't Justice Stevens just retire from service under the provisions of 28 USC 371(b)(1) and still perfom the duties of a Justice to the extent that s/he saw fit? No statutory amendment necessary, it would seem, if Justices would retire that way instead of leaving office, and the senior Justices could form a pool from which to fill recusal vacancies on the Court.


Professor Geyh's concerns can be dealt with. The statute could require the Court to randomly select the Justice to fill the spot created by the recusal from among the retired Justices in the pool. Once in the pool -- that is, once in the group of Justices willing to accept an assignment -- the retired Justice would have to accept any selection.


Another horribly thought out proposal from Leahy.

The comments to this entry are closed.

Blog powered by Typepad