“That would make a lot of sense,” Leahy told The National Law Journal‘s David Ingram, “because if you’ve got an eight-member Court, you could easily have 4-to-4 decisions.”
Leahy, who is considering introducing legislation that would allow this to happen, said he got the idea from the justice soon to join the ranks of the retired.
“I talked with Justice [John Paul] 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.
Currently, both retried Justices Sandra Day O’Connor and David Souter frequently sit on the bench of courts of appeal – and Stevens’ suggestion seems to indicate he too would be willing. Leahy said such a law change would avert the danger of recusals ending in 4-4 ties, preventing the Court from rendering a decision on the merits.
But when told of the idea, Republican committee member Sen. Orrin Hatch didn’t seem as enthusiastic. He said he’s inclined to oppose it. “A tie vote is still a result,” Hatch said.