Retired Supreme Court Justices in the Courts of Appeals

Abstract

Retired Supreme Court Justices in the Courts of Appeals STEPHEN L. WASBY Supreme Court Justices, after their retirement from the Court, engage in a variety of activities and at times comment on current issues. Justice Sandra Day O’Connor, for example, often speaks aboutjudicial indepen­ dence. Such statements attract attention. What does not attract attention, so that little is known about the subject, is that retired Justices continue to decide cases—but in the lower federal courts. This article is an examination of their participation in the U.S. Courts of Appeals. To avoid possible tie votes from vacan­ cies resulting from illness, death, or recusal, many state high courts bring back their retired justices for particular cases. There is no such practice in the United States Supreme Court, although Sen. Patrick Leahy (D-VT) recently proposed it.1 Supreme Court Justices who retire cannot again sit on the Supreme Court, even if one or more of “the brethren” is unavailable. However, a 1937 statute allows retired Justices to sit on lower courts,2 and several have done so, especially in the Courts of Appeals. Some have only had minimal lower-court participation, but others have sat for an extended period of time and written more than a few opinions. Justices Stanley F. Reed and Harold H. Burton are examples ofJustices who sat in only one circuit. More recently, David H. Souter sat in the First Circuit, where he had served briefly prior to his Supreme Court nomination. Others have sat in several circuits. Justice Tom Clark sat in every geographic circuit (and the Court of Customs and Patent Appeals [CCPA]),3 and Sandra Day O’Connor has sat in all but the D.C. Circuit. Both Potter Stewart and Byron R. White sat in several but not all circuits, while Lewis F. Powell, Jr. sat only in the Eleventh Circuit in addition to the Fourth Circuit in which he lived. A retired Justice would not be likely to sit regularly in the lower courts ifretirement had been for reasons ofill health, but those retiring for other reasons often wish to remain active by deciding cases. Most obvious in this regard is Tom Clark, who retired to allow President Lyndon B. Johnson to appoint his son, RETIRED JUSTICES SERVING ON COURTS OF APPEALS 147 Ramsey, as Attorney General so he would not have to recuse himself frequently in cases involving the federal government. Justice O’Connor retired because of her husband’s dementia but, after his institutionalization, had the opportunity for both speech-making and Court of Appeals participation. This article will examine only those Justices who sat in the Courts of Appeals a nontrivial number of times. Among matters examined are the number of cases in which retired Justices participated; the number ofthe opinions they wrote, including separate opinions; the subject matters of the cases in which they participated and their routine or significant nature; and the judges with whom they sat. Its primary purpose is to update the one systematic study of the subject by Minor Myers III4 to include Justices Sandra Day O’Connor and David H. Souter, to modify the number of participations reported for earlier retired Justices, and to explore additional questions. Because of the importance of their possible effect on the dynamics of the courts in which retired Justices sit, the results of a short survey of Court of Appeals judges who sat with them will be reported. Also noted is whether a retired Justice’s positions in the Courts of Appeals are consistent with those taken earlier on the Supreme Court, as it would be useful to know whether the retired Justice continued any position or “agenda” evidenced by previous rulings. Related is the use retired Justices make of Supreme Court decisions, both from before and after their tenure there and particularly from cases in which they participated and in which they wrote opinions, although a Justice’s Court of Appeals opinions are likely to be constrained not only by more recent Supreme Court opinions but also by circuit precedent. The Myers Study Myers reported that nine Justices (Willis Van Devanter, Stanley F. Reed, Harold H. Burton, Tom Clark, Potter Stewart, Lewis F...