A standing-room-only crowd filled the courtroom of Ninth U.S. Circuit Court of Appeals recently when retired Supreme Court Justice Sandra Day O’Connor appeared there to help decide three Montana cases.
Although it is rare to see a former member of the nation’s highest court fill in on a lower court panel, it is not unusual in the federal court system for judges to substitute for one another. The only court that does not permit pinch-hitters is the Supreme Court.
Sen. Patrick J. Leahy, D-Vt., who chairs the Senate Judiciary Committee, thinks it may be time for the Supreme Court to allow retired justices to fill in when an active member of the court recuses himself or herself from a case. The suggestion, according to Leahy, comes from none other than the just-retired Justice John Paul Stevens, who at age 90 may already be feeling some remorse over his decision to step down.
Once a federal judge, always a federal judge. Article III of the U.S. Constitution establishes that federal judges “shall hold their offices during good behavior,” effectively allowing them to serve for life unless impeached. After retirement, judges may take what is known as “senior status,” continuing to receive the same annual salary they received while active and retaining the ability to hear cases on a part-time basis.
These provisions preserve the judiciary’s independence and integrity by immunizing judges from political and financial pressures. They also provide a pool of experienced judges ready to step in whenever a full-time judge is unavailable.
Federal law provides that “Any retired circuit or district judge may be designated and assigned by the chief judge or judicial council of his circuit to perform such judicial duties within the circuit as he is willing and able to undertake.” This means that judges who have retired from district courts may, on occasion, serve on the three-judge panels of the circuit courts of appeals. Active district court judges may also be called on from time to time to fill vacancies at the circuit court level.
Meanwhile, senior judges and justices from higher courts, including the Supreme Court, may fill vacancies in lower courts. Former Justice O'Connor took senior status when she left the Supreme Court in 2006 and has since heard cases in appellate courts across the nation.
This substitution and mixing of judges from various levels of the court system is intellectually healthy as well as efficient. Lower court judges can remind appellate judges, who may not have run a trial court in many years (if ever), what it is like on the front lines of the federal justice system. Judges from higher courts can bring renewed rigor and a broader perspective to lower court proceedings.
But I don’t think it is a good idea to extend this mix-and-match system of judicial selection to the nation’s highest court. I think it would further politicize the court and undermine respect for the justices and their decisions. This would not be good for the country.
Justices have complete discretion over whether to recuse themselves from hearing a particular case. Typically they do not disclose their reasons for recusal, though it is usually apparent that a justice may have a personal or financial conflict of interest, or may have worked on a case or a closely related matter prior to joining the court.
The remaining eight justices decide the case if one of their brethren takes a pass. This means the court can split 4-4, which is liable to happen on any number of issues where the modern court is polarized. A tie means the lower court’s decision stands, but the Supreme Court’s action does not establish a precedent that is binding in future cases. Leahy and Stevens argue that justices may avoid recusing themselves to avoid having cases end in such an unfulfilling way.
"If there is a way for retired justices to help the court fulfill its role in our democracy, I think we should consider it,” Leahy told The Washington Post.
It strikes me that the substitution proposal would create much bigger problems than it would solve. If a tie occurs because of a recusal, the Supreme Court can revisit the issue in another case. On the other hand, a justice who opts not to step aside in a particular case is open to second-guessing from critics, who will argue that the justice was afraid to give a substitute with a different philosophy the opportunity to cast the deciding vote. It is much healthier for the high court to simply wait to set its nationally binding, unreviewable precedents in cases where no justice needs to be disqualified.
Leahy’s proposal also carries a partisan tone. Former Justice O’Connor is a judicial moderate, while the other two current Supreme Court retirees — Justices Stevens and David Souter — are more closely aligned with the court’s liberal faction, which is currently outnumbered 5-4 on many issues by the conservative bloc led by Chief Justice John Roberts. Allowing these retirees to step back onto the high court is a no-lose proposition for Leahy, a highly partisan backer of the liberals. Only O’Connor is even remotely likely to side with the conservatives in a split decision, and even then she is going to be among the more moderate conservatives. In nearly all cases, allowing substitutions will either strengthen the liberals or leave their power unchanged.
Leahy has not said how he would propose to go about selecting which justice should fill in for a vacancy in a particular case.
We do not have a non-ideological, non-political Supreme Court today. That’s too bad. But we do have an independent court that is free to decide cases without regard to what Congress or the President would prefer. We need only look to last year's Citizens United decision—and President Obama's childish State of the Union rant—for proof of that. The Leahy-Stevens proposal looks like an effort to stack the bench with their preferred bench players. When it comes to the highest court in the land, we should accept no substitutes.