Senator Patrick Leahy proposed a new law that would allow a retired Supreme Court justice to pinch hit if a justice recuses himself or herself from a case. The idea, of course, is that it would lead to less 4-4 rulings in which case the lower court ruling stands.
The Maryland Court of Appeals has been doing this effectively for years. I think it is a bad idea for the Supreme Court. First, the Supreme Court is – to the chagrin of many – a highly political body. This makes sense because the issues that go to the Court are the tough issues of our time and judges tend to go with their philosophical point of view.
Most judges agree on the basics. It is the nail biters that go to the Supreme Court. These nail biters split so often along ideological lines, with the four conservatives pitted against the four liberals, leaving Justice Kennedy in control of the critical issues of our day.
That balance – albeit a bizarre balance – is a delicate one. So, naturally, the decision as to who to pull out of retirement is going to be a big one. Does the president make the choice? Does the Chief Justice make the call? (I’m not sure but I think Judge Bell makes the call in Maryland as to who to call up.) It would just make the court more overtly political at a time when it would be nice to be able to downplay what a political body the court really is.
Moreover, I like retired Supreme Court justices being able to write books and speak their minds with impunity after they retire. Calling them back is going to detract from that.
A 4-4 vote is not a good thing but it is not exactly a tragedy either. We have been doing it this way for well over 200 years. My vote: let’s leave things as they are.