Senator Considers Legislation to Give Retired Justices a New Role
Retired U.S. Supreme Court Justice Sandra Day O’Connor is filling in to help decide cases in the federal appeals courts, but her days on the U.S. Supreme Court have been over since her retirement in 2006.
That could change under legislation being considered by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., the Washington Post reports. The proposal: Allow retired justices to help decide Supreme Court cases when there is a recusal.
“I want justices to feel free to recuse themselves when they have a conflict in a specific case,” Leahy said in a statement released to the newspaper. The story points out that the court’s newest justice, Elena Kagan, has already identified a dozen cases she will not be able to hear because of her work as solicitor general.
Leahy told the National Law Journal in June that Justice John Paul Stevens proposed the idea.
The Post story says any legislation “would likely be enabling rather than mandatory” because of separation-of-powers issues. A law could set up some sort of selection mechanism if the court opted to use retired justices.
The proposal could meet with some resistance from conservatives, though, since all three retired justices are more liberal than the court’s conservative bloc. Another problem would be how to choose which justice would get to hear a case. Should the person be selected by the chief justice or a vote of all the justices? Should there be a rotation?
