WASHINGTON — Justice John Paul Stevens has been retired from the Supreme Court for more than a month. Maybe it’s time to bring him back.
Or perhaps Justice Sandra Day O’Connor. Since she left in 2006, she has been crisscrossing the nation denouncing the evils of electing judges rather than appointing them, and serving on important federal and state commissions.
Along the way, she has filled in and decided cases with almost every federal appellate court in the nation. Save one. The one to which she was appointed in 1981.
Senate Judiciary Committee chairman Patrick Leahy, D-Vt., is pondering whether a change is needed. He’s considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself — or herself — in a particular case.
This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of conflict.
“The highest court in the land is the final word on constitutional law,” Leahy said in a statement to The Washington Post. “I want justices to feel free to recuse themselves when they have a conflict in a specific case.”
Justices recuse themselves occasionally from cases. The choice is theirs, and they rarely explain the reason. Most often it is because of a financial conflict or the involvement of a family member. As the court has changed recently — with four new members in five years — the reason for recusal is increasingly because a justice played a role in the case in the lower courts.
Chief Justice John Roberts and Justices Samuel Alito and Sonia Sotomayor were all previously appeals court judges, and all have had to sit out cases that landed in the high court. In her first term, which concluded in June, Sotomayor recused herself from six cases, for instance, and did not take part in a greater number that the court was considering whether to review.
New Justice Elena Kagan will be absent from the court’s bench for more than that. She already has identified a dozen cases she worked on as solicitor general that she will not hear as a justice, and more are likely as the court accepts new cases for the term that begins in October.
Any discussion of Congress telling the court how to conduct its business raises separation- of-powers questions. Any legislation would likely be enabling rather than mandatory, simply allowing the court to use retired justices if it chooses and setting up a selection mechanism.
