Michael C. Dorf

Some Possible Hidden Complications of a Senate Proposal to Permit Retired Justices to Pinch-Hit for Their Recused Colleagues

By MICHAEL C. DORF
Wednesday, October 6, 2010

By MICHAEL C. DORF

Elena Kagan is now officially the junior Justice of the Supreme Court. Traditionally, the Junior Justice--like a rookie on a professional baseball team--is tasked with some unpopular duties, such as answering a knock at the door during the Justices-only conference.

For Kagan's first Term on the Court, at least, the baseball metaphor will seem especially fitting. Like many baseball rookies, Kagan will find her playing time limited. But that's not because the team manager thinks Kagan isn't ready to play every day. Rather, as Solicitor General, Kagan participated, on behalf of the government, in many of the cases now before the Court; thus, she has recused herself from the deliberations and decisions regarding those cases.

In baseball, when a regular player has the day off, someone else takes his place. So, too, on the lower federal courts, where retired judges and Justices can sit "by designation" on courts that need some help--typically because they are understaffed and awaiting the nomination and/or confirmation of new judges. But the Supreme Court has no process for assigning substitute judges or Justices to pinch-hit for a recused Justice. In fact, federal law specifically forbids it. When a Justice is recused--or when a Justice retires or dies, but a successor has not yet been confirmed to replace her--the Court simply fields a team of eight (or fewer, in the case of multiple recusals or vacancies).

The problem with fielding a team of eight Justices, of course, is that the Court can split four to four. Under the Court's procedures, when that happens, the lower court ruling stands but the case makes no precedent. And because the main point of Supreme Court review of lower court decisions is to resolve outstanding disagreements over the meaning of federal law, such a ruling "affirming by an equally divided Court" ends up undermining the basis for the Court's decision to hear the case in the first place.

Fortunately, a legislative solution is at hand. Last week, Vermont Senator Patrick Leahy introduced a bill that would permit a majority of the Court to designate a retired Justice to substitute for a recused Justice in any particular case. With retired Justices Sandra Day O'Connor, David Souter, and John Paul Stevens all potentially available to come off the metaphorical bench and temporarily resume their seats on the real bench, the Leahy proposal looks like a sensible solution to the recusal problem.

And indeed it is a good idea, on the whole. Nonetheless, as I shall explain in the balance of this column, the Leahy bill carries with it some potential risks--the most serious of these concerning the judicial politics that could frustrate its effectiveness and exacerbate divisions on the Court.

Why Justice Kagan's Recusals Mostly Won't Make a Difference

Justice Kagan has already announced that she will be recusing herself in twenty-four of the cases on this Term's docket. Thus, the Leahy bill, if passed quickly, looks like it could play an important role this Term.

Yet closer inspection suggests that the bill's impact would likely be quite minor. A recusal only affects the outcome of a case if the remaining, unrecused Justices are evenly divided. Last Term, the Supreme Court decided sixteen cases by a 5-4 margin. But in only seven of those 5-4 decisions was Justice Stevens--the Justice whom Kagan replaced--in the majority. Put differently, there were only seven cases last year in which five votes could not be found among the eight Justices whom Kagan now joins.

Last year, the Court decided 72 cases by written opinion. If we assume that Justice Kagan's recusals are randomly distributed relative to the Court's likely divisions, then using last year's numbers, we would expect her 24 recusals to translate into just two or three cases in which her absence makes a difference. That's because seven difference-making votes in a docket of 72 cases is roughly proportionate to two or three difference-making vote in 24 recused cases.

Moreover, even if we were to allow for a few more recusals or a larger docket, it is hard to imagine that Kagan's recusal would make a difference in more than four or five cases. Those cases are potentially significant, to be sure, but if the issues are sufficiently important, they will re-occur in other cases in which Justice Kagan did not participate as Solicitor General, and they can be resolved then. Hence, while Kagan's recusal in 24 cases may sound significant, viewed in proper perspective it is quite minor.

The Ideological Complication

In fact, even the foregoing number-crunching may overestimate the ability of the Leahy proposal to make a difference. Based on recent experience, in roughly half of the 5-4 cases in which Justice Stevens was in the majority, the Court split on ideological grounds. Yet in those cases, the conservative Justices might be reluctant to call on the assistance of one of their retired colleagues. And the selection of a particular Justice could itself be fraught.

Imagine some issue on which the Court is divided between its conservative bloc--Roberts, Scalia, Thomas, and Alito--and its liberal bloc--Ginsburg, Breyer, and Sotomayor--with Justice Kennedy somewhere in between and Justice Kagan recused. If the conservatives do not vote to add a retired Justice to their number, then they will know that the worst that their side can do is a tie. But if they do add a retired Justice, they could lose. That's because on most ideologically-divisive issues, all of the retired Justices are more liberal than Justice Kennedy. Thus, adding any one of them into the mix would likely render the Court's result on that case more liberal.

Moreover, if the Court can muster five votes to assign a retired Justice to participate in an ideologically-divisive case, which retired Justice should they choose? On most issues, Justice O'Connor is more conservative than either Justice Stevens or Justice Souter. Would the Court fight a preliminary battle over which retired Justice to appoint in any ideologically-divisive case?

There appear to be only two ways for the Court to avoid such internally-awkward machinations, should the Leahy bill pass. One would be for the Court to act as it has until now and simply not recall retired Justices--but that itself might well disappoint the retired Justices. Justice O'Connor has occasionally expressed an interest in hearing cases by designation on her old Court, and Justice Stevens reportedly planted the idea of the current bill with Senator Leahy in the first place.

That leaves one other option: The Court could adopt a blanket policy of always appointing a retired Justice when an active Justice recuses himself or herself, and then using some mechanical procedure--such as a lottery or a strict rotation--to choose which retired Justice to call upon.

Such a procedure would itself be at least somewhat problematic, though. The Leahy bill would grant the Court the discretion to decide when to designate a retiree to substitute for a recused Justice. But under the procedure that would best avoid internal political turmoil, that discretion would need to be exercised in every case. Thus, a bill providing an option for retired Justices to sit at the Court's discretion would, in practice, mandate that one must sit in every case of a recusal.

The Best Reason to Support the Leahy Proposal

Accordingly, there are real difficulties with the Leahy bill. To address a relatively minor problem, the bill would effectively impose on the Court and the retired Justices a duty that at least one of them does not appear to relish. Although Justices O'Connor and Stevens may wish to moonlight at their old day jobs, there are few indications that Justice Souter wants to spend his retirement anywhere but New Hampshire. Would the need to maintain a neutral mechanism for selecting Justices to sit by designation drag him back to Washington for about eight cases this Term?

Oddly enough, if the answer is yes, that may be the best reason to support the Leahy bill. Collectively, Justices O'Connor, Souter, and Stevens served for nearly eighty years on the high Court. Each of them remains mentally razor-sharp, as ninety-year-old Stevens demonstrated in a recent interview with NPR's Nina Totenberg. The Court could benefit from the wisdom that each of the retired Justices would interject. And for those of us who think that Justices O'Connor and Souter retired too early, the chance to bring them back to the Court as regular pinch-hitters this Term and occasional pinch-hitters in the future would be most welcome.

Justice Stevens began his dissent in the 1988 case of Frisby v. Schultz with the provocative line: " GET WELL CHARLIE - OUR TEAM NEEDS YOU." In the same vein, the Leahy bill could be encapsulated in a plea from Congress and the country: "STAY WELL AND COME BACK SANDRA, DAVID, AND JOHN--The Court may not really need you, but it would sure be nice to see you again."


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. His latest book is   The Oxford Introductions to U.S. Law: Constitutional Law   (with Trevor Morrison). He blogs at dorfonlaw.org.