Sen. Patrick Leahy (D-VT), the chairman of the U.S. Senate Committee on the Judiciary, has introduced legislation that would allow retired Supreme Court justices to return to the court by designation when one or more of the court's active members has recused.
Under Leahy's proposed legislation, the court, by majority vote, could designate a former justice to sit in for a current justice who has disqualified himself or herself from a case, NPR's Nina Totenberg reports.
There are currently three former justices -- Sandra Day O'Connor, David Souter, and John Paul Stevens.
According to Totenberg, "Leahy said it was Stevens who first suggested to him the idea of designating a former justice to ensure a full court hears all cases and to prevent tie votes."
"When a Justice needs to recuse from a matter under the rules that govern judicial conflicts of interest, the Supreme Court may be rendered ineffective, because there are no provisions in place to allow another to be designated to sit in his or her place," Leahy said in a statement.
Given the Court’s recent rash of 5:4 rulings, the absence of one Justice could result in a 4:4 decision. In that scenario, the Supreme Court cannot serve its function and the lower court decision stands.
Leahy's office provides some history:
Congress has previously given the Chief Justice of the Supreme Court the authority to designate and assign retired Supreme Court justices to cases in any federal circuit. However, the law does not provide any authority permitting a former justice to sit by designation on the Supreme Court – the court to which he or she was confirmed.
Thus far, the court's newest justice, Elena Kagan, has recused herself from 25 cases because of her participation in them as the Obama administration's solicitor general.
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