Senate Judiciary Committee Chairman Patrick Leahy of Vermont is considering legislation that would allow retired Supreme Court justices to help decide cases when there is a recusal, according to a recent article in The Washington Post.
In the past, justices only occasionally recused themselves from cases, most often because of a personal conflict. But with the make-up of the court changing so often over the past few years, justices are increasingly recusing themselves because they have played a role in the lower court case. Elena Kagan, for example, has already identified a dozen upcoming cases she cannot hear because she worked on them as solicitor general.
Experts say any proposed legislation in this area would raise separation of powers issues, so the legislation would most likely simply allow the court to use retired justices if it chooses and set up some sort of selection mechanism. The proposal would also likely face political resistance since all three retired justices are more liberal than the court’s conservative bloc.
For more details, go to the full article.