Avoiding the 4-4 SCOTUS split

In my last Generation J.D. blog post, I discussed the current and future implications of having an eight-member Supreme Court for the foreseeable future. As luck would have it, six days later, the Supreme Court issued another nine-word, per curiam order affirming the appeals court's decision "by an equally divided Court." Friedrichs v. California Teachers Association, considered the "most important labor union controversy to reach the Supreme Court in years," was widely believed to be heading toward a 5-4 decision based on oral arguments, with the late Justice Antonin Scalia providing one of the five majority votes.

As SCOTUSBlog writer Lyle Denniston put it:

"The Court had heard the Friedrichs case on January 11 and, from all appearances then, it seemed to be on its way toward a five-to-four decision to declare that it would be unconstitutional for unions representing government employees to charge fees to workers they represent but who are not among its members, even when the fees cover the costs of normal union bargaining over working conditions, not lobbying or outright political advocacy.

But the death of Justice Antonin Scalia last month left the Court to either find a way still to decide the case, or to end it with an even split. If it had actually tried since Scalia's death to find a way around a split, that effort clearly came up short. The result set no precedent, and thus left the constitutional issue dangling."

While the nomination of appellate Judge Merrick Garland is making some headway in the Senate, the question still remains: How many more cases will "[sputter] to an end" in a 4-4 split?

Federal law allows the chief justice to recall retired federal justices and judges and designate them for judicial service. 28 U.S.C. 294(a) states that "[a]ny retired Chief Justice of the United States or Associate Justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit, including those of a circuit justice, as he is willing to undertake."

It is common for retired federal judges to be recalled into active service. Retired Justice David Souter continues to hear cases by designation in his home 1st U.S. Circuit Court of Appeals. Moreover, Washington lawyer E. Jon A. Gryskiewicz noted in a law review article that in the 80 years since justices became eligible to retire from the Supreme Court and sit by designation on lower courts, almost 30 % (11 out of 38 eligible justices) have done so.

Section 294(d) permits the chief justice to recall and designate for judicial service any retired federal judge "in a court outside his own circuit, in the case of a retired circuit or district judge, or in a court other than his own, in the case of any other retired judge of the United States." This allows a retired federal judge to sit in any court where there a need exists. The subsection concludes, however, that "[n]o such designation or assignment shall be made to the Supreme Court."

In order to avoid 4-4 votes, which have wide-reaching implications, Congress should amend 294 to allow retired Supreme Court justices to be recalled into service when a temporary vacancy on the court exists. This would bring the Supreme Court in line with the numerous state courts of last resort that permit retired judges to serve when an opening exists. Maryland's own Court of Appeals often has a retired judge sit by designation when a current member of the court is recused from a case. I see no reason why federal law should not follow suit for the Supreme Court.

I admit this plan is not perfect. Often, there are no living, retired Supreme Court justices when a vacancy exists. Now, however, with three living, retired justices, it only makes sense to amend 28 U.S.C. 294 to permit the chief justice to recall a living, retired justice into service.

If the Senate insists on being obstinate regarding confirmation hearings for Garland, the least it can do is amend the law to allow the court to plug its own hole, even temporarily.

Published: Thu, Apr 21, 2016

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