Wednesday, June 23, 2010

Retired Justices to Continue to Sit?

There's a movement afoot to create legislation allowing a retired Supreme Court Justice to sit in a case where a current justice has recused himself or herself. The rationale behind the proposal by Senator Patrick Leahy (D-VT) is to lessen the likelihood of an evenly-divided court.

"I talked with Justice Stevens, and he raised the question, 'Could we not have a provision in the law for some mechanism that retired Supreme Court justices could be asked to sit on the Court when there is a recusal?' " Leahy said in an interview with The National Law Journal.

This might be a good idea, except for one small problem: the Justices most in favor of this proposal are Rethuglicans, like Scalia and the late William Rehnquist.

In 2000, Chief Justice William Rehnquist decided to hear an antitrust case involving Microsoft Corp., despite his son's work for the company in a separate case. In explaining his decision not to recuse, Rehnquist noted "the negative impact that the unnecessary disqualification of even one Justice" might have.

"Not only is the Court deprived of the participation of one of its nine Members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court," Rehnquist wrote.

God forbid anyone shuld ever rule against Microsoft, right?

Justice Antonin Scalia expressed a similar concern in 2004, when he declined to recuse from a case involving Vice President Dick Cheney. The two went on a hunting trip in Louisiana while the case -- related to records from Cheney's energy task force -- was pending.

Scalia simply said, "Darth Cheney must be obeyed. Secrecy must be maintained. Resistance is futile. All must be assimilated."

The unspoken concern, of course, was that the Supreme Court would be unable to support Big Business over the interests of the common man, if the neocons were not allowed to have a majority of the Court.

Face it, if Rehnquist and Scalia support something, you just have to know it's a bad idea. Plus, of course, you didn't hear any concerns about this when the Court was missing one of its liberal Justices.

Surprisingly, Orrin Hatch (R/Neanderthal - Utah) opposed the idea.

Stevens was appointed to the Court by Gerald Ford in 1975, and has generally been one of the more liberal Justices (especially when compared to the likes of Rehnquist, Scalia, and Roberts). So if this idea comes to pass, you can expect the Reich-wing Justices to support the idea, but demand some way to ensure only their guys get called back after retirement.

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