Calling in the Reserves: Judicial Replacements on the U.S. Supreme Court

Abstract

The decision to recuse presents Supreme Court justices with a no-win choice between preserving legitimacy and risking the possibility of an evenly divided vote. A recent proposal would allow retired justices to serve when a justice is absent to help alleviate this tension. Here, we examine the potential implications of this proposal using more than 60 years of unique counterfactual data. Our results suggest that replacement justices could have changed the policy set by the Court in only a small subset of cases and, more importantly, could have helped the Court avoid more than a quarter of their even divisions.