43 Pages Posted: 22 Feb 2011
Date Written: February, 22 2011
Senator Patrick Leahy recently introduced a bill that would override a New-Deal-era federal statute forbidding retired justices from serving by designation on the Supreme Court of the United States. The Leahy bill would authorize the Court to recall willing retired justices to substitute for recused justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including: whether the possibility of 4-4 splits justifies substitution of a retired justice for an active one; whether permitting retired justices to substitute for recused justices would violate Article III’s requirement that there be “one Supreme Court;” and whether the ethical limitations on extra-judicial activities should be the same for active and retired judges and justices. In addition to relying on published material, the authors draw on information gleaned from their interview with retired Justice John Paul Stevens, who was the original source of the Leahy proposal.
Keywords: Article III, retired, justice, recused, judges, Supreme Court, Constitution
Suggested Citation: Suggested Citation
Dorf, Michael C. and McElroy, Lisa, Coming Off the Bench: Legal and Policy Implications of Proposals to Allow Retired Justices to Sit by Designation on the Supreme Court (February, 22 2011). Duke Law Journal, Vol. 61, No. 81, 2011; Cornell Legal Studies Research Paper No. 11-07; Drexel University Earle Mack School of Law Research Paper No. 2011-A-07. Available at SSRN: https://ssrn.com/abstract=1767333