In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would violate Article III's requirement that there be "one supreme Court"; and whether the ethical limitations on extrajudicial activities should be the same for active and retired judges and Justices. In addition to relying on published material, we draw on information gleaned from our interview with retired Justice Stevens, who was the original source of the Leahy proposal.
Lisa T. McElroy and Michael C. Dorf,
Coming off the Bench: Legal and Policy Implications of Proposals To Allow Retired Justices To Sit By Designation on the Supreme Court,
61 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol61/iss1/2