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

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the U.S. Supreme Court sits with an even number of justices it risks a equally divided outcome, which results in the non-precedential affirmance of the lower court decision thereby preserving inconstancies in the law.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