Senator Patrick Leahy (D-Vt.) has introduced legislation that would allow a retired U.S. Supreme Court justice to hear a case when an active justice decides it would be a conflict of interest to participate in the Court’s consideration of the matter.
Under the proposal, the retired justice would serve if “a majority of active justices vote to designate and assign that retired chief justice or associate justice.”
Congress currently allows the chief justice to designate and assign retired justices to any federal circuit court but not the U.S. Supreme Court, a law that Leahy evidently views as ironic. “Retired justices may be designated to sit on any court in the land except the one to which they were confirmed,” he said in a September 29, 2010, press release. “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 judge can serve in their place when justices recuse.”
His proposal would also allow the U.S. Supreme Court to avoid the possibility of a tie, Leahy asserted. “When a justice needs to recuse from a matter under the rules that govern judicial conflicts of interest, the Supreme Court may be rendered ineffective, because there are no provisions in place to allow another to be designated to sit in his or her place,” he was quoted as saying. “Given the court’s recent rash of 5-4 rulings, the absence of one justice could result in a 4-4 decision. In that scenario, the Supreme Court cannot serve its function and the lower court decision stands.”