Thursday, October 07, 2010


By Mike Dorf

My latest FindLaw column considers a proposed bill by Sen. Leahy that would permit retired Supreme Court Justices to serve by designation on their old Court in cases in which one or more active Justices are recused.  As I explain in the column, even though Justice Kagan has already recused herself in 24 cases this Term, the proposal--if acted upon swiftly--would not actually make a difference in more than about 3 cases.  Nonetheless, I favor the proposal because it would be nice to see Justices O'Connor, Souter and Stevens returning for encores.  Here I'll add a few thoughts about judicial retirement and retirement more generally.

1) Under current practice, retired Supreme Court Justices can (and occasionally do) sit by designation on the lower federal courts, but for someone who spent a long time on the Supreme Court, it's hard to imagine that doing so is especially fulfilling.  Returning to the Supreme Court has got to be more gratifying.  Given how the Court functions--more or less as nine solo practitioners who happen to share an office building--the only real opportunity for a retired Justice to engage with his or her former colleagues would be to do so back on the old bench.

2) Of course, even under the Leahy proposal, retired Justices would not be called upon to return to the SCOTUS bench very often.  Within a short time, the cases coming up from the lower courts will not be ones that Kagan worked on as SG, and the other Justices typically have no more than a couple of recusals each per Term.  So in a typical year, each retired Justice would be called upon to fill in for a recused active Justice no more than a handful of times per year.

3) SCOTUS Justices have a reason to retire that most people lack: By timing his or retirement right, a Justice can ensure that the replacement Justice is appointed by a President of his or her own ideological persuasion.  But for ordinary folks, it's not clear why anyone with a reasonably fulfilling white-collar job should ever retire. Sure, if you're a coal miner or otherwise engaged in physically demanding labor and your body is giving out, it makes sense to retire rather than squeeze out a few more painful years at the workplace.  But otherwise, the mental stimulation of work is almost certainly beneficial in warding off boredom and senility.

4) As various news stories have recently documented (e.g. here), the recession and decline in portfolio values have left people who planned to retire with the thought that they will not retire until forced to do so by ill health.  This phenomenon will undoubtedly have ripple effects on everything from the viability of retirement communities in the sunbelt to job opportunities for people in their 20s.  But it's probably useful to sort out those medium-term effects from the long-term policy question of what the law should do to support or discourage retirement.

5) The recent unrest in France in response to the proposed raising of the retirement age (from 60 to 62) shows that most people there continue to think that traditional retirement beats continued employment.  It is doubtful that attitudes in the U.S. differ much, except perhaps among the wealthy.  But it is quite possible that people misunderstand their own interests.  From what I've read, retirement is often a prelude to decline in a way that continued gainful employment is not--although again, much depends on whether a particular job is more than a brutal grind.  It would be useful to have a policy conversation about retirement that was not connected to the politics of Social Security, Medicare, etc.  But we almost surely won't.


Scott said...

Might there be a relevant distinction here between justices who have taken senior status (i.e., retired from regular active service) and those who have actually retired from the bench, on the theory that the latter are no longer Article III judges? Ed Whalen had a post on this in a related context, suggesting based on the terms of Justice O'Connor's letter to President Bush that she might no longer be an Article III judge, whereas Justices Stevens and Souter said they were retiring only from regular active service, citing the statutory provision on the point. Whether or not Ed is right, the proposal you discuss would certainly put a premium on clarity in resignation letters.

Scott said...

(Whelan, rather. Oops!)

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