Leahy Proposal to Avoid 4–4 Ties: It’s About Timing

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Senate Judiciary Committee Chairman Patrick Leahy has floated the idea of passing a new law to allow a retired Supreme Court justice to sit on a case in which a current justice has recused, to avoid 4–4 ties.

This proposal, reported on June 16 by National Law Journal’s Blog of Legal Times based on an interview with Leahy, who said he had drafted a bill and would probably introduce it, would be “a major shift in how the Court operates,” the blog said.

Here’s the BLT report: http://legaltimes.typepad.com/blt/2010/06/should-retired-justices-be-called-back-to-supreme-court.html/. Leahy’s idea raises interesting questions and there is much to be said both for and against it.

But why is it popping up now? And why was Senator Orrin Hatch, R-Utah, so quick to tell the blog that his initial reaction was negative?

It has been widely known for many decades that recusals can produce 4-4 ties, an outcome regarded as a waste of the Court’s time because a tie vote creates no Supreme Court precedent, leaving the lower curt decision undisturbed, as though the justices had never studied the briefs, heard arguments, and cast their votes.

Leahy said that he got the idea of enlisting retired justices to avoid 4–4 votes from soon-to-retire Justice John Paul Stevens, who suggested it during a meeting.

Hmmmm. It’s not hard to see why Stevens—who is still sharp at age 90 and appeared to be torn about his decision to retire—might like to keep his hand in now and then.

As for Leahy, he is well aware that the only living justices who have already retired are David Souter and Sandra Day O’Connor.

Stevens and Souter have been solid members of the Court’s liberal faction. And O’Connor voted with the liberals in almost all of the biggest 5–4 decisions in her last few years on the Court. These included cases on abortion, affirmative action preferences, racial gerrymandering of election districts, presidential war powers, religion, campaign finance reform, the death penalty, gay rights, and others.

The only cases in which a justice's recusal matters are those in which the other eight justices end up splitting 4–4. And most of those, especially the biggest ones, are liberal-conservative splits.

So the apparent impact of the Leahy proposal would be to insure liberal victories in almost every big case in which it makes a difference for the foreseeable future. None of the more conservative justices appears close to retiring.

Bet on a Republican filibuster if Leahy's idea ever gets to the Senate floor.