The SCOTUS Proxy?

Now that Associate Supreme Court Justice Elena Kagan has taken her seat on the bench, the reality that the former Obama Administration Solicitor General will recuse herself from 21 of the 39 oral arguments scheduled for this term.

To this end, Senate Judiciary Chairman Patrick Leahy (D-VT) has proposed legislation that would permit substitutions in the event that active Supreme Court Justices need to recuse themselves. Leahy was prompted by a suggestion of retiring Associate Justice John Paul Stevens

Such a legislative fix would allow the majority of the Supreme Court to designate a former U.S. Supreme Court as a proxy for the recused active Justice. Supporters of this bill claim that Justices would more readily recuse themselves since there would not be the frustration of a 4:4 verdict, which fails to make new law and upholds the lower court ruling.

Leahy trumpets the fact that retired Justices currently can be designated to sit on any court in the land except for the one to which they were confirmed. So Leahy’s bill would allow for substitutions like every other federal court.

The problem is that the Supreme Court of the United States is not like every other court. It decides the constitutionality of the law of the land. In modern American jurisprudence, the Supreme Court can impose legislative like decisions (e.g. Roe v. Wade).

Article III of the Constitution fills vacancies on the Supreme Court by the Chief Executive (Article I branch) by the Advice and Consent of the Senate (Article II branch). Leahy’s legislation eschews constitutional checks and balances as itt allows emeritus officeholders to reassume power.

From a practical perspective, this would mean that John Paul Stevens, David Souter and Sandra Day O’Connor would be able to be designated SCOTUS substitutes. No doubt that their jurisprudence would continue to lurch left. Justice Stevens retired at age 90. Sandra Day O’Connor is 80 year old. So two thirds of the current pool is superannuated. I am dubious about Justices who gave up their offices at an advanced age would be sharp as a tack while developing their jurisprudence on a case, but I am sure we could count on their vote.

The Constitution allow Justices to hold office during Good Behavior, which effectively meant for life. Leahy’s SCOTUS Substitution fix would allow justices like Abe Fortas and William O. Douglas, both of whom resigned under an ethical cloud over their careers, would have been eligible to be High Court proxies, since neither were successfully impeached.

There is also the uncomfortable issue is about the substitute leaving the field. In late 1974, Justice Douglas suffered a debilitating stroke, yet he still continued to insist on participating in Supreme Court activities. Douglas’ Supreme Court brethren worked around this inconvenience by putting off cases where Douglas’ participation would have been consequential. Douglas was convinced to resign but then he refused to accept his own retirement. In fact, even after President Ford named John Paul Stevens as his replacement, Douglas tried to participate on cases for several months. This impasse was only overcome by Chief Justice Warren Burger who took away Douglas’ law clerks and all nine Justices signed a formal letter indicating that Douglas’ service in office was over.

Leahy touts the virtue that it would be easier for Justices recuse themselves. While the Supreme Court is currently immune from political pressure. But easier recusals could make the High Court susceptible to the high tides of public sentiment. Leahy was said to be irked by Justice Scalia not recusing himself on a case which involved Vice President Cheney’s hunting buddy. I can easily foresee a coordinated political and media campaign to pressure a Justice to recuse himself and influence the outcome of the case.

Basically, Leahy’s SCOTUS Substitution Bill opens the door to Machiavellian mischief, confuses who comprises the Highest Court in the land and utterly ignores the Constitution. Ordinarily, I would ignore this as a vanity bill which goes nowhere. However, this was proposed by the Senate Judiciary Chairman, who is derided as Leaky Leahy for not following proper procedure which curtailed his power. And there is an upcoming Lame Duck Session of Congress which will try to jam pack liberal legislation before the Democrats lose their ruling majority.

Since this Congress has repeatedly passed 2,500 page bills without reading them, Leahy’ modest proposal has to be taken seriously and we must remain vigilant against such imprudent innovations being burrowed into other lengthy legislation during the dark of night.