The Policy Consequences of Allowing Retired Justices to Serve on the U.S. Supreme Court

35 Pages Posted: 22 Sep 2011

See all articles by Ryan C. Black

Ryan C. Black

Michigan State University - Department of Political Science

Amanda Clare Bryan

University of Minnesota - Twin Cities - Department of Political Science

Date Written: September 21, 2011

Abstract

When the U.S. Supreme Court sits with an even number of justices it risks a equally divided outcome, which results in the non-precedential affirmance of the lower court decision thereby preserving inconstancies in the law. Justices have used this risk to justify choosing not recuse themselves in cases with potential conflicts of interest. An existing policy proposal suggests using retired justices as stand-ins for recused justices, thereby addressing both concerns. Bringing an empirical perspective to this debate, we analyze how using replacement justices would have affected the policy outcome in over 800 of the Court's decisions since 1946. Our results suggest that the existence of a replacement justice policy would likely have resulted in appreciable changes to legal policy across a variety of important cases.

Keywords: U.S. Supreme Court, judicial politics, recusal, equally divided courts, evenly divided courts

Suggested Citation

Black, Ryan C. and Bryan, Amanda Clare, The Policy Consequences of Allowing Retired Justices to Serve on the U.S. Supreme Court (September 21, 2011). Available at SSRN: https://ssrn.com/abstract=1931714 or http://dx.doi.org/10.2139/ssrn.1931714

Ryan C. Black (Contact Author)

Michigan State University - Department of Political Science ( email )

East Lansing, MI 48824
United States

HOME PAGE: http://ryancblack.org

Amanda Clare Bryan

University of Minnesota - Twin Cities - Department of Political Science ( email )

Minneapolis, MN 55455-0410
United States

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