A Second Sitting: Assessing the Constitutionality and Desirability of Allowing Retired Supreme Court Justices to Fill Recusal-Based Vacancies on the Bench
By Rebekah Saidman-Krauss.
“Could we not have a provision in the law for some mechanism that retired Supreme Court [J]ustices could be asked to sit on the Court when there is a recusal,” wondered former Supreme Court Justice John Paul Stevens. This question spurred Vermont Senator Patrick Leahy to draft legislation that would create such a mechanism. If enacted, Leahy’s proposed legislation would enable the active Justices on the Court to select, by a majority vote, retired Justices to return to the Bench to fill recusal-based vacancies.
Judicial recusal describes a judge’s sua sponte withdrawal from a case, whereas disqualification refers to judicial removal that is required by statute or prompted by a party’s motion. These technical distinctions notwithstanding, recusal and disqualification are governed by the same federal standard and are often used interchangeably.
Historically, Supreme Court Justices have been disinclined to recuse themselves, even when a litigant has moved for a Justice’s disqualification. Common law doctrines such as the “duty to sit” and the “rule of necessity” effectively create recusal loopholes, allowing judges to refrain from recusal in situations that would otherwise warrant such action. Prior to 1974, Supreme Court Justices frequently invoked these common law doctrines in support of their refusal to recuse.
In 1974, Congress amended 28 U.S.C. § 455 to curb widespread judicial reliance on these common law doctrines. Despite Congress’s attempt to create a standard wherein judges would “err on the side of recusal,” certain Justices have failed to comply. The Supreme Court, in particular, has indicated that its “unique nature justifies a less demanding recusal standard” than that which governs all other federal judges.