Coming off the Bench: Legal and Policy Implications of Proposals To Allow Retired Justices To Sit By Designation on the Supreme Court

Lisa McElroy & Michael C. Dorf

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In her first term as an Associate Justice of the Supreme Court of the United States, Elena Kagan recused herself from roughly one-third of the cases on the Court’s docket. Although Justices do not typically divulge their grounds for recusing, the reason for all of these recusals was obvious: Kagan believed that her participation in various aspects of these cases in her former role as solicitor general created at least the appearance of impropriety. Kagan perhaps could have taken a narrower view and recused herself in fewer cases; nevertheless, once the deed was done, the Court was left shorthanded.

Into the breach stepped Chairman of the Senate Judiciary Committee Patrick Leahy, who introduced a bill 1 that would lift a New Deal-era prohibition on retired Supreme Court Justices’ sitting by designation on the high court. Under the Leahy proposal, a majority of the active Justices would have been able to designate a retired Justice to substitute for a recused Justice.

Although we do not endorse the solution proposed by the Leahy bill, the Leahy suggestion raises the broader question of how retired Justices who wish to remain active in public life may do so consistent with judicial ethics and constitutional constraints. Furthermore, in seeking to draw on the experience and expertise of retired Justices, the Leahy proposal—and the others that we discuss in this Article—offers an opportunity to explore questions about the nature of the office held by active Supreme Court Justices, no less than retired ones.


I.
Retired Justices Throughout History and Today

Before the 1990s, it was not unusual for a Justice to retire when no other retired Justice was living and mentally competent. And before 1937, when Congress passed the Retirement Act, retirement was not even possible; resignation was the only available option.

In the 1990s, however, Chief Justice Burger and Justices Powell, White, and Blackmun were simultaneously alive and in reasonably good health for at least part of their retirements. Between 2005 and 2010, Justices O’Connor, Souter, and Stevens retired from their positions on the Court, all before their health or mental competence required them to do so.

When relatively young and healthy Justices retire, they do not typically sit idly by and watch as the world marches on without them. Justices who have retired since the 1960s have tended to engage in a wide range of activities: They give interviews and speeches; they teach law students and other adults; they chair or otherwise serve on commissions; they speak out on issues related to the judiciary and beyond; and they sit by designation on the lower federal courts.


II.
The “Problem” and Potential Solution


A. Background: The “Rehnquist/Stevens” Proposal

The history of the current proposal to allow retired Justices to sit on the Supreme Court when one or more Justices recuses illustrates the recurring nature of the underlying problem. We interviewed retired Justice Stevens on the subject, and he told us that many years earlier, he and Chief Justice Rehnquist had conceived of the idea that became the Leahy bill. At the time, however, they were unable to persuade any of their colleagues to ask Congress to pass authorizing legislation. Upon retiring, Justice Stevens attempted to revive the idea by suggesting it to Senator Leahy. The primary motive of Justice Stevens and Chief Justice Rehnquist was to avoid 4–4 vote splits, and Senator Leahy had the same intent.


B. Retirement’s Costs

The retirement of a Supreme Court Justice differs from other retirements. Unlike employees in other professions, Justices retire and then remain completely disengaged from the Supreme Court decisionmaking process. For professionals from physicians to athletes to corporate executives, even for lawyers in top firms, retirement usually means continued engagement—if not directly, at least as a consultant. Yet when it comes to Supreme Court Justices, the option to remain a “player” is not available. Thus, the ineligibility of retired Justices to serve on the Supreme Court carries at least one obvious cost: it contributes to the atrophy of a valuable human resource, even when retired Justices remain active in other respects.


C. Avoiding 4–4 Splits

Although loss of human capital may be the broad problem occasioned by Justices’ retirements, proposals to permit them to return and “pinch hit” typically target a more specific issue: 4–4 vote splits due to recusals. In recent years, however, the Court has, on average, decided fewer than one case per term by a 4–4 vote as a result of a recusal. To be sure, large numbers of recusals or absences by future Justices could, in theory, lead to a substantial number of 4–4 splits, but that prospect is, for now, only hypothetical and is unsupported by recent history.

It could be argued, however, that even one 4–4 split can be harmful, because it leaves important questions unresolved. We agree that this argument adds some force to the case for the Leahy proposal but would caution against overstating the point for two reasons. First, issues that are truly important to resolve are likely to recur, and second, the Court is unlikely to be able to utilize a substitute Justice in precisely the cases that we have reason to think would result in the most 4–4 splits: ideologically divisive cases.


D. Quorums and Institutional Dynamics

Historically, proposals to permit substitutes on the Supreme Court have tended to arise in response to the risk that no quorum would be available to resolve an important case. But for much the same reason that the Leahy bill is unnecessary to resolve 4–4 splits, it is unnecessary to create a quorum: cases in which there is no quorum very rarely arise.

Although the substitution of a retired Justice for a recused Justice might have secondary effects on the dynamics of the Court at oral argument and in conference, a seriously shorthanded Court occurs with sufficient infrequency to suggest that this situation, too, is generally not a problem.


E. Strategic Considerations Under the Leahy Bill

The Judicial Code of Conduct that most judges must follow does not apply to Supreme Court Justices, leaving recusal to the discretion of each Justice. A Justice makes a difficult decision in each case that might warrant recusal. But were Congress to authorize the substitution of a retired Justice to fill a vacancy, a Justice deciding whether to recuse herself may well consider one additional factor: which retired Justice might take her place in deciding the case. As Justice Stevens asserted in his interview with us, at a formal and conscious level, a Justice should decide whether to recuse without regard to such consequences. But as human beings, Justices are subject to all of the same cognitive biases as everyone else; therefore, even if only subconsciously, a Justice might choose not to recuse herself for strategic reasons.


F. Administrability

Beyond the practicalities of implementing a substitution system, the system itself would require a mechanism to select which retired Justice would serve when multiple retired Justices were available. A strict rotation system could lead to the problem already discussed, with Justices, at least subconsciously, making recusal decisions and voting on whether to substitute a retired Justice based in part on how a particular substitute would be likely to vote on the merits. The same problem arises out of a different proposal suggested to us by Justice Stevens—using “expert” retired Justices in cases involving highly specialized law and facts.

We think that a lottery system would likely be most practicable, although with a small number of retired Justices at any given time, strategic factors could still play a role. No answer will be perfect or even mostly satisfactory. Moreover, the procedure adopted for choosing a method of selecting retired Justices could in turn affect what method would be chosen.


III.
Is the Leahy Proposal Constitutional?


A. Service on Lower Courts

The Constitution nowhere expressly provides for the retirement of Supreme Court Justices or Article III judges, but from the earliest days of the Republic, it has been understood that Justices and judges can resign their commissions. At least as far as lower federal court judges are concerned, a retired judge is, constitutionally speaking, just another Article III judge. Thus, service by retired Supreme Court Justices on lower federal courts appears to be constitutionally unobjectionable.


B. Article III’s Requirement of “[O]ne [S]upreme Court”

Article III vests the judicial power in “one supreme Court.” A Court with fluctuating membership, one objection goes, would not be “one” Supreme Court, but several different Courts. Although the matter is not entirely free from doubt, we believe that the better reading of Article III’s requirement of “one supreme Court” would permit retired Justices to serve as substitutes for recused or otherwise-unavailable Justices.

To better understand why, consider a related question: Could Congress authorize the Supreme Court to sit in panels, rather than in plenary sessions? Certainly a court that regularly sits in panels—like the U.S. Court of Appeals for the Second Circuit—can be understood as “one” court. So long as Supreme Court en banc review of panel decisions were available, even a formalist reading of the “one supreme Court” requirement would still be satisfied: The Court sitting en banc would be the “real” indivisible Supreme Court, while the panels could be understood as lower federal courts.

We introduce this arrangement simply to show that if so radical a change as Supreme Court panels satisfies Article III—as it arguably does—then it should be very difficult to find constitutional fault with a change so minor as a statute that would permit retired Supreme Court Justices to occasionally substitute for recused or otherwise-unavailable Justices.


IV.
Ethical Constraints on Adjudication by Retired Justices


A. Recusal of Retired Justices Under Existing Law

When sitting by designation on a lower federal court, a retired Supreme Court Justice is subject to recusal under exactly the same circumstances as those under which an active judge or Justice would be. Permitting retired Justices to serve on the Supreme Court as well as on lower federal courts would not, and should not, change the recusal standard with respect to particular cases.


B. Retired Justices as Elder Statespersons

Beyond the requirement of recusal in particular cases, retired Justices may face conflicts that current law discounts. This issue arises because retired Justices have sometimes taken on the role of “elder statespersons” by serving the country in a nonjudicial capacity.

Longstanding case law confirms the compatibility of such service with holding an Article III office. Yet surely at some point there is a line beyond which one becomes categorically ineligible to serve as a judge or Justice.

The constitutional text is at best silent on this issue. Indeed, it could be said by negative implication to authorize concurrent judicial and executive service. In barring a judge or Justice from also serving in Congress, the Constitution tacitly permits judges and Justices to hold positions in the executive branch. Nonetheless, separation-of-powers principles should be understood to bar anyone from simultaneously holding office in the executive and judicial branches.

Thus, we assume that there are constitutional limits on the ability of active judges and Justices to play other roles in government.

Without attempting to define the boundaries precisely, we would say that the limits on involvement in nonjudicial tasks by retired Justices should be somewhat less strict than the limits for active Justices. The rules and standards governing permissible extrajudicial activities focus in substantial part on appearances, after all, and a vigorous schedule of moonlighting will typically appear less appropriate when undertaken by an active judge or Justice than when undertaken by a retired one.


Conclusion

The Leahy bill was not enacted into law, and no similar law is likely to be passed in the near future. Nonetheless, the Leahy proposal warrants serious consideration because it reveals a great deal about the Supreme Court as an institution and about retired Justices.

Retired Justices do not ride quietly into the sunset, never to be heard from again. But balancing the roles of elder statesperson and part-time judge or Justice can raise delicate questions of judicial ethics. Nevertheless, the operative legal principles should be interpreted broadly to permit retired Justices to serve in both capacities, lest the public be deprived of their perspective on policy matters or the courts be deprived of their contributions to the law.

Acknowledgments:

Copyright © 2011 Duke Law Journal

Lisa T. McElroy is an Associate Professor of Law, Drexel University Earle Mack School of Law.

Michael C. Dorf is the Robert S. Stevens Professor of Law, Cornell University Law School.

The authors gratefully acknowledge very helpful comments by Tabatha Abu El-Haj, David Cohen, Donald Tibbs, and Bradley Wendel, as well as the excellent research assistance provided by John Cannan, Tony Chiaramonte, Tom Cole, Alexandra Robins, and Benjamin Tettlebaum.

This Legal Workshop Editorial is based on the following article: Lisa T. McElroy & Michael C. Dorf, Coming off the Bench: Legal and Policy Implications of Proposals To Allow Retired Justices To Sit By Designation on the Supreme Court, 61 DUKE L.J. 81 (2011).

  1. Senator Patrick Leahy’s September 29, 2010, bill was simple in its concept and its language: “To amend chapter 13 of title 28, United States Code, to authorize the designation and assignment of retired justices of the Supreme Court to particular cases in which an active justice is recused.” S. 3871, 111th Cong. pmbl. (2010). In other words, in any Supreme Court case in which a sitting Justice was recused, a retired Supreme Court Justice could be tapped to take her place in deciding the case. The September 29 bill read as follows:

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

    SECTION 1. DESIGNATION AND ASSIGNMENT OF RETIRED
    SUPREME COURT JUSTICES.

    Section 294 of title 28, United States Code, is amended—

    (1) in subsection (a), by inserting ‘‘(1)’’ after ‘‘(a)’’;

    (2) by adding at the end the following:

    ‘‘(2) Any retired Chief Justice of the United States or any retired Associate Justice of the Supreme Court may be designated and assigned to serve as a justice on the Supreme Court of the United States in a particular case if—

    ‘‘(A) any active justice is recused from that case; and

    ‘‘(B) a majority of active justices vote to designate and assign that retired Chief Justice or Associate Justice.’’; and

    (3) in subsection (d), by striking ‘‘No such designation or assignment shall be made to the Supreme Court.’’ and inserting ‘‘Except as provided under subsection (a)(2), no designation or assignment under this section shall be made to the Supreme Court.’’

    Id. § 1.


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