The Peril and Promise of SCOTUS Resignations
Virginia Public Law and Legal Theory Research Paper No. 2022-27
107 Iowa L. Rev. Online 117 (2022)
19 Pages Posted: 8 Apr 2022 Last revised: 1 Aug 2022
Date Written: April 7, 2022
Justice Breyer’s recent manner of effectuating his retirement points out both a problem and an opportunity. The problem is that there is no settled understanding, much less governing law, as to what a justice’s resignation decision means or does. As a result, a justice might renege on a resignation decision or engage in other undesirable forms of resignation creativity. Supporting that worry, it seems that at least two federal circuit judges have recently retracted their resignations out of disaffection for the people the president intended to nominate as their successors. The simplest way to solve that problem is to make resignation letters formally binding. And, it turns out, that reform brings with it a major benefit: it provides a new, auspicious means of achieving federal judicial term limits, a widely desired reform that has so far eluded achievement. How? Through “opt-in term limits,” that is, term limits that are established through judges’ voluntary but binding resignation announcements.
Keywords: court reform, Supreme Court, judicial term limits
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