Why Can't The Supremes Go To The Bench?
Occasionally U.S. Supreme Court Justices find the need to recuse themselves from hearing a particular case. Generally this is because of a conflict of interest. The classic example is where a Justice owns stock in a company with a case before the Court. In the near future, we will see Justice Kagan recuse herself from hearing several cases that she worked on as Solicitor General before her nomination.
This has a strange end result. Most appellate courts have an odd number of judges. The Supreme Court has nine, the Court of Appeals of Maryland has seven. The reason for this is obvious- to prevent a tie.
The potential problem is that when the Supreme Court loses a member to recusal, the case is heard by an eight-member court. This raises the possibility of a 4-4 tie. This article from the Washington Post discusses a plan to fix this potential problem. Senator Patrick Leahy has proposed allowing retires justices to be recalled for particular cases to prevent a tie, and also to promote recusal in light of an appearance of a conflict. Retired Justices occasionally sit on every federal court we have, except for the Supreme Court.
Of course, politics has reared its ugly head on Senator Leahy's very practical idea. The dispute is over how to decide which retired Justice to recall in a particular case. Basically, how to prevent the Chief Justice or whoever makes the call from cherry picking a retired Justice of a particular ideological bent in an attempt to swing the outcome of a case.
First, I think its unfair to assume conduct like this would happen. I would hope anyone who was confirmed as Chief Justice would find the thought of doing this ethically repugnant. Second, we have had this in Maryland forever, and I have never heard of such an accusation being made about our Court of Appeals.
If it were up to me, I would do it the way they hand out overtime in union factories. Whoever had the most seniority woudl get offered the chance to sit first, and then go down the list of seniority until a retired Justice volunteers. Then when there is another case, you start where you left off on the list. Seems pretty fair, right?
Since this seems practical, it will probably never happen.
