Stevens: Rehnquist and I proposed allowing retired Justices to serve during #SCOTUS Vacancy

May 5th, 2016

Justice Stevens–who has neither officially retired, nor hears cases on the Circuit Court–continues to offer his opinion. During a discussion with Marcia Coyle in New York–after excoriating the Senate for not holding a hearing for Judge Garland–JPS drops this chestnut which I hadn’t heard before.

Asked if there was anything Chief Justice Roberts could do now to fill the vacancy temporarily, perhaps by calling him or another justice out of retirement while the Senate gets its act together, Stevens said he wasn’t sure if there was a legal mechanism available. (Retired justices do sometimes fill in on lower federal courts.) But he recalled a time that he and the late Chief Justice Rehnquist proposed a rule to do just that in the event of an unforeseen Supreme Court vacancy.

“We both were in favor of it, but nobody else on the court was,” Stevens said, to laughter from the audience.

That’s news to me. To be precise, Stevens does not mean Justices who engaged in a full retirement–that is stepped down from their Article III commission pursuant to 28 U.S.C. 371(a). Rather, he means “retired” for purposes of 28 U.S.C. 371(b), which allows Judges to hear a reduced case load under so-called “senior-status.” Query how Stevens, who has never heard a case by designation, but maintains chambers at the Court, and has a law clerk, is in senior status? The short answer–from what I have gathered–is that the Chief Justice approved this arrangement under 28 U.S.C. 371(e)(1).

In any event, JPS is not interested in serving, and DHS has already headed for the hills:

Some have argued that the Supreme Court is required by law to have nine active justices. But even if Roberts interpreted that to mean he could call on a retired justice to serve, Stevens might not be so amenable to the idea.

“I would say no,” the 96-year-old demurred. “I’d reserve the right to say no.”

The third living retired justice, David Souter, remains active as an occasional circuit judge but shuns the public spotlight. He is unlikely to step forward with any comment about the Supreme Court’s current troubles.

“From what I know of Justice Souter, he’d probably have a backpack packed and be headed for the White Mountains,” Coyle said.

By the way, I apologize for the blogging slow down the past few days. This past few days have been, well, interesting. In addition to finalizing edits on the book, I have also written a few longer pieces relevant to current events, which you should see shortly.