Thursday, September 30, 2010
As we previously discussed, the suggestion to "bring back" Supreme Court Justices who have retired - - - that would be O'Connor, Souter, and Stevens - - - seems a solution to the problem of Supreme Court Justice recusals. The recusal issue is especially pronounced this term because the newest Justice comes to the bench after having been Solictor General.
Senator Patrick Leahy has introduced a Bill which would allow such a process. The Bill provides:
(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.’
Leahy notes that the process was suggested by then-Justice Stevens. Currently, "Congress has previously given the Chief Justice of the Supreme Court the authority to designate and assign retired Supreme Court justices to cases in any federal circuit," as demonstrated by a recent case in which former Justice Souter wrote an opinion in the First Circuit. But, as Leahy states, "the law does not provide any authority permitting a former justice to sit by designation on the Supreme Court – the court to which he or she was confirmed."
In addition to the pragmatic and political issues, the process may pose some constitutional issues as we discussed here.