Senate Judiciary Committee Chairman Patrick Leahy, Vermont Democrat, has proposed a bill that would allow for retired Supreme Court Justices to sit on the court by designation in cases where the active justice has recused. READ THE BILL
Under the proposed bill, the active justices of the Supreme Court would be permitted to vote to designate a retired Supreme Court justice in a particular case in which one or more Justices have recused themselves and allow the court to preempt potential 4:4 split decisions, in which the decision of a lower court stands.
According to a press release from the Judiciary Committee, “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. However, 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.”
“Retired Justices may be designated to sit on any court in the land except the one to which they were confirmed,” said Mr. Leahy. “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.”
Judiciary Committee member Orrin Hatch, Utah Republican, had not seen the proposed bill yet, but from what he first heard, he did not like the sound of it. He told me on Wednesday, “I don’t agree with prior Supreme Court Justices coming on the court. Once they’ve retired, they’ve retired. They can serve on the circuit courts, but they should not serve on the highest courts, at least that’s my initial reaction, but I’ll certainly look at it,” he said. ” I don’t agree with that. That could be a very political tool. I think the court should stay as far away from politics as possible.”