Supreme Court

Leahy introduces bill to allow retired Supreme Court justices to serve

Sen. Patrick Leahy, D-Vt., has put into writing a proposal he first discussed publicly in June: allowing a retired U.S. Supreme Court justice to hear a case when a sitting justice has recused.

Leahy, the chairman of the Senate Judiciary Committee, filed the two-page legislation Wednesday, his office said. As Leahy told The National Law Journal in an interview in June, the proposal would allow the Court to avoid the possibility of a 4-4 tie when a justice has recused.

A big question has been how to decide which retired justice would serve during times when there is more than one retiree who is willing to serve. Now, for example, there are three retired justices -- Sandra Day O'Connor, David Souter and John Paul Stevens -- and skeptics have wondered whether litigants might be able to game any substitution.

Leahy's bill would answer the question by handing the decision to the Court itself. Under the bill, the retiree would serve if "a majority of active justices vote to designate and assign that retired Chief Justice or Associate Justice." Click here (PDF) for a copy of the bill.

In a news release, Leahy suggested it's ironic that a retired justice may serve on a circuit court of appeals but not on the Supreme Court.

"Retired Justices may be designated to sit on any court in the land except the one to which they were confirmed," Leahy said. "The bill I am introducing today will ensure that the Supreme Court can continue to serve its essential function. In recent history, Justices have refused to recuse themselves and one of their justifications has been that the Supreme Court is unlike lower courts because no other judge can serve in their place when Justices recuse."

No senators have signed on as co-sponsors, though a Leahy spokeswoman said he hasn't yet begun to solicit them. In June, Sen. Orrin Hatch, R-Utah, a former Judiciary Committee chairman, said he was skeptical that there is a problem. "A tie vote is still a result," he said then.

(Published by – September 30, 2010)

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