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 is that it would lead to fewer 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 terrible 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 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 delicate. So, naturally, the decision of whom to pull out of retirement will 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 who to call up.) It would just make the court more overtly political when it would be nice to downplay what a political body the court really is.
I like retired Supreme Court justices being able to write books and speak their minds with impunity after they retire. Calling them back will 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.