Should Retired Justices Be Called Back to Supreme Court?

Sen. Patrick Leahy (D-Vt.) is thinking about proposing legislation that would allow a retired U.S. Supreme Court justice to sit in a case when a current justice has recused — in what would be a major shift in how the Court operates.

The idea comes up as Justice John Paul Stevens prepares to join the ranks of retired justices. Leahy, who chairs the Senate Judiciary Committee, said he decided to draft a bill after a recent meeting with Stevens.

“I talked with Justice Stevens, and he raised the question, ‘Could we not have a provision in the law for some mechanism that retired Supreme Court justices could be asked to sit on the Court when there is a recusal?’ ” Leahy said in an interview with The National Law Journal.

“That would make a lot of sense,” he added, “because if you’ve got an eight-member Court, you could easily have 4-to-4 decisions.” In such cases, the lower court’s ruling stands. Leahy said he has prepared a draft of a bill and probably will introduce it eventually. His office later declined to describe its contents or provide a copy.

http://legaltimes.typepad.com/blt/2010/06/should-retired-justices-be-called-back-to-supreme-court.html


Excellent idea!

In essence, under normal conditions, the chief judge or judicial council of a circuit may assign a senior judge belonging to that circuit to perform any duty within the circuit that the judge is willing and able to perform.

http://en.wikipedia.org/wiki/Senior_status

I don't see why this couldn't be done.

to fill in .

of course i don't think Scalia will ever voluntarily leave the court.

it's one of those things that are good for the moment. but it reminds me of how they changed Mass law to hold elections rather than temp governor appointee if Senate seat is vacated for whatever reason. Romney was the Govt at the time so it looked good. but look how it turned out later.

At least a 4-4 tie doesn't have precedential value. While I hate 4-4 ties, a 5-4 opinion that sets precedent but would be overturned as soon as the next case comes where the justice doesn't have to recuse themself might be worse. I don't know.

They should definitely change the recusal law though to minimize needless recusals.

Scalia went duck hunting with Cheney the weekend before Cheney's Energy meeting case came before the court. Scalia wouldn't even consider recusal..If that isn't an obvious in your face conflict of interest there is no such thing..

work that way