Why does Justice Stevens not sit on Circuit Courts

May 6th, 2014

A friend who attended Justice Stevens’s latest event at 6th and I in Washington relayed this account of why JPS does not hear cases on the Circuit Courts, unlike his colleagues Justices O’Connor and S0uter:

When he retired he decided not to sit on the Courts of Appeals – he’s not required to do so and does not need to do it to still get privileges like retaining chambers and clerks. Jokingly said he’s not sure if O’Connor and Souter received the same info when they retired. He says Souter enjoys sitting primarily on the 1st Circuit and has remained active. He also thinks O’Connor enjoys that, as well as her other activities which he thinks is great. Judge Tatel led the conversation with JPS and said there was a standing invite for JPS to come sit on the DC Circuit.
That is correct. Justice Stevens assumed senior status under 28 U.S.C. 371(B)(1). Generally, when District or Circuit Judges take senior status, they are required to maintain some minimal caseload, or perform other administrative or judicial duties, to retain their chambers and staff. But the rule is different for a Justice. See 28 U.S.C. 371(e)(1):
 In order to continue receiving the salary of the office under subsection (b), a justice must be certified in each calendar year by the Chief Justice, and a judge must be certified by the chief judge of the circuit in which the judge sits, as having met the requirements set forth in at least one of the following subparagraphs
In other words, a District or Circuit Judge must perform a host of various tasks to retain senior status. In contrast, a Justice need only be certified by the Chief Justice each calendar year. Certified what? Basically nothing. There is nothing to certify, other than the fact that the Justice is still in Senior Status (seems somewhat redundant). So retired Justices have no affirmative obligation to hear cases, and they can keep their chambers and staff indefinitely. (I know that requests have been made to the Chief Justice’s counsel for copies of these certifications but none, to my knowledge, have been produced).

Of course none of this explains why JPS keeps his chambers and clerks if he is not performing any judicial work. As Lyle noted, the Court is in fact working in support of Justice Stevens’s legislative crusade.

His prepared testimony before the Senate panel was distributed for him by the Court’s staff.  He no doubt had at least some help with it from a government-salaried law clerk.  And they very likely did some work on it in the judicial chambers he still occupies.  The remarks are clearly his own, but they have the patina of the high judicial office he held for nearly thirty-five years.

Notwithstanding his jocularity concerning his worry-free senior status, if Justice Stevens wants to continue to promote legislative change in the manner he has, without doing any actual judicial work, he doesn’t need a tax-payer funded judicial chamber and staff to do so.