Alas, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, is the latest politician to turn his attention to the Supreme Court. Leahy thinks the justices have more conflicts of interest than they acknowledge, and should recuse themselves more frequently than they do. He believes that justices actually would sit out more cases if there were a process by which a credible substitute might be named. So he has proposed legislation under which a majority of the justices could appoint a retired justice to fill the seat in a case in which the chief justice or an associate justice was recused.

Leahy thinks his bill would keep the Court at full strength. He worries that a case in which a justice is recused may result in a 4-to-4 tie. In that situation, the decision from the lower courts is left standing, and everyone’s time is wasted, in Leahy’s opinion.

The senator advances his idea in a not irrelevant context. Recusals were relatively rare until the appointment to the Court of Elena Kagan, President Obama’s solicitor general. Kagan ran the office within the Justice Department that represents the government in the Supreme Court and shapes its positions in the lower courts, arguing a few cases herself. Her involvement in 2009 and 2010 in issues now coming to the Court was so extensive that she already has recused herself in almost half the cases the Court so far has accepted for review this term.

This means that in those cases the Court will lack the participation of what most observers expect will be a reliable judicial liberal, reducing the number of such justices to three on a closely divided Court. Under Leahy’s proposal, however, there would be little or no fall off in the Court’s judicial liberalism, since the pool of retired justices from which the eight active justices would be able to pick would include Sandra Day O’Connor, David Souter, and John Paul Stevens. There isn’t a judicial conservative among them, and two of them—Souter and Stevens—are as liberal in their philosophy as Kagan is likely to prove (perhaps even more so). It’s doubtful that Leahy would be proposing his remedy to the Republic-shaking problem of a justice’s recusal if the pool of retired justices were made up of judicial conservatives.

The naked political cast of Leahy’s proposal is one reason it will fail. The new Republican House and a strong Republican minority in the Senate will make sure that it does fail. But the proposal is dubious on other grounds as well. It might not achieve the more frequent recusals Leahy wishes for, since a justice pondering recusal could very well decide to stay in a case in order to keep out of it a retired justice with a different view of the law. More fundamental is the objection that Leahy’s proposal envisions differently composed Supreme Courts, as one retired justice sits in this case and then another retiree in that. The precedential value of decisions rendered by a Court with pinch-hitting justices would likely not be as strong as those handed down by “one supreme Court,” as the Constitution describes it. The result, almost certainly, would be litigation probing the authority of decisions carrying the asterisk that signifies a Leahy Court.

In any case, we are fortunate that this parade of horribles is unlikely to occur. The operative word in Leahy’s legislation is “may,” which means that even if his bill were ever to pass, it would still be up to the Court to do as it wished when a recusal occurs.

So the status quo will persist. But it must be said that a 4-to-4 tie is not the worst thing that can happen. While a tie effectively postpones resolution of the legal question at issue, it also permits more time for learned consideration of the matter. And as for Justice Kagan’s many recusals to date, she is likely to have a great many terms in which she’ll participate in every case. Here, too, liberals, made anxious by the results of the midterm elections, will have to learn patience.

—Terry Eastland

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