Sitting by Designation on the Supreme Court

This article from the ABA’s online journal discusses the possibility of designating Circuit Judges for service on the Supreme Court when a recusal raises the possibility of a case being affirmed by an equally divided Court.

My reaction is cautiously negative. To be sure, such a program allows for cases to be decided by the Supreme Court, providing uniformity in the interpretation of a particular portion of federal law. I wonder, however, how often circuit splits are allowed to persist because of recusals. Most times, I would imagine, a Justice recuses himself because of a conflict of interest relating to a particular party. When that same issue is raised in a later case by a different party, there is no recusal and the issue is decided.

I wonder how the Court would treat a 5-4 precedent where one of the 5 was a Circuit Judge sitting by designation. On the one hand, there would be little point in allowing the designation if the cases were not to be accorded horizontal stare decisis. The Supreme Court is not a court for the correction of errors (usually), and the Court does not normally take cases that will have no effect on the development of the law.

On the other hand, however, I would be very uncomfortable treating such a case as binding by the regular nine-Member Court in a case where there was no recusal. Imagine, for example, that in a case interpreting Statute X, Justice O’Connor is recused and the rest of the Court splits 4-4. A designated Circuit Judge breaks the tie and holds that the statutory language means A. In the next case raising the issue, Justice O’Connor does not need to recuse. Why should she be bound to A, if she and four other Justices think the correct interpretation is B?

Such a proposal is not new. It is used, as the article reports, by many state supreme courts, including the New York Court of Appeals, where I clerked. By all accounts that system works well, and I know of no instance where there was any acrimony in choosing the judges who were to sit by designation on that court. Additionally, it was proposed by Justice John Paul Stevens in 1988 for adoption by the U.S. Supreme Court itself. See Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court 255-57 (2003).

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