- The Washington Times - Friday, October 8, 2010

Sometimes, a Supreme Court justice will recuse himself from hearing a case. The justice may own stock in the company before the court, or a close relative will be arguing the case. The situations in which justices recuse themselves are infrequent, and rarer still are the situations in which the resulting eight-member court will split in a 4-4 tie - until now.

The reason for the change is that our latest justice was, until a short time ago, the solicitor general of the United States and a key member of President Obama’s legal team. At first, Justice Elena Kagan appeared to say she would disqualify herself only in cases in which she was listed as one of the authors of the solicitor general’s brief filed before the court. However, a federal statute specifically governs this situation, and it is much stricter. During my testimony before the Judiciary Committee in July, I explained that the federal law requires disqualification in every case where, as a government employee, she participated as a lawyer or “adviser” or “expressed an opinion concerning the merits of the particular case in controversy.”

Thus far, Justice Kagan has disqualified herself in nearly 50 percent of the cases (25 of the 51 cases so far this term). We should not be surprised if that percentage does not drop substantially for the next year or so. For example, she may have to disqualify herself in cases testing the constitutionality of the new medical care overhaul, popularly called Obamacare, if she earlier “expressed an opinion” about cases now in litigation.

With the problem of disqualification in mind, Sen. Patrick Leahy, Vermont Democrat, has introduced legislation that would authorize retired Supreme Court justices to return to the court to decide cases when one or more of the court’s members are recused. There are just three retired justices now (John Paul Stevens, David Souter and Sandra Day O’Connor) and none of them is considered conservative. Justice Stevens, in fact, suggested the idea that he or another retired justice become the deciding vote if there is a 4-4 tie.

There are policy problems behind this proposal. It would make the law unstable because we know - at the very moment that the court renders its decision - that the deciding factor is a person who leaves the bench the moment after the decision. If we have a 4-4 tie, the decision is not precedent. The court can decide the issue at some later time, when the disqualifying factor is gone. But, under the Leahy-proposed law, we do not know if lower courts must treat the decision as binding precedent or if the Supreme Court would treat it as binding when the full court (the “real” court) decides the issue. More important, this proposed law smacks of court-packing.

The last big effort to pack the court was in 1937, when President Franklin D. Roosevelt tried to expand the number of justices who could sit on the court. Most people do not realize that only a statute (and not the Constitution) limits the number of justices to nine. FDR’s plan would have given him six new justices to appoint.

Mr. Leahy does not propose to increase the number of justices. His plan is more subtle: It would substitute a new justice just to decide a particular case. Yet his proposal suffers from a constitutional flaw - one that also existed in part of FDR’s ill-fated court-packing plan. Because FDR would have new appointees, the number of justices would increase to 15. That is a large number, so part of the plan proposed that the court could sit in special divisions or panels that would not include all the justices.

Chief Justice Charles Evans Hughes, in response to an inquiry from Sen. Burton Wheeler, wrote that it not only would be inadvisable for the court to sit in panels but would appear to violate the constitutional requirement that there be “one Supreme Court.” A contemporary observer reported that Hughes’ letter was the “most powerful weapon” for those who opposed packing the court.

Mr. Leahy’s proposed law shares the same constitutional flaw that Hughes identified. There is not “one” Supreme Court if one group of justices decides one case while a Supreme Court with different membership decides another case.

After Justice William O. Douglas retired from the court, he kept his office there. There came a time when he wanted to write an opinion and publish it with the other opinions. Justice Douglas thought that even though he was retired, he still was part of the court and could cast a vote. No member of the court agreed with him, and he never filed his opinion. The modern court, like the court of 1937, knows there cannot be one Supreme Court if the membership changes from case to case.

Ronald D. Rotunda is a professor of Jurisprudence at Chapman University School of Law.

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