Since the time of her departure from the Supreme Court, retired justice Sandra Day O’Connor has decided cases as a member of various panels of the regional courts of appeals, supposedly pursuant to the authority of 28 U.S.C. § 294. In this post, I will tentatively sketch an argument that Justice O’Connor’s participation in those cases has been unconstitutional.
I emphasize that my argument is tentative. That’s in part because there may be facts unknown to me that would alter my conclusion. It’s also because I just ran across the factual predicate of the argument yesterday evening, and I haven’t had time to explore carefully all the issues that may be involved. Indeed, given more pressing claims on my time, I don’t expect to take the time to explore these issues more fully. I am instead tossing them out for consideration by those who may be expert on some or all of the issues. I invite anyone who has informed views, one way or the other, to pass those views along to me at ewhelan@eppc.org. I will supplement this post as appropriate. And, of course, if I come to determine that my tentative conclusion is incorrect, I will promptly say so.
Here’s the short version of the argument (which, for sake of brevity, omits many of the qualifications and reservations in the longer form):
When Justice O’Connor informed President Bush of her decision to retire from the Supreme Court, she didn’t merely state that she would be retiring from regular active service as a justice. Rather, she stated that she would “retire from my position as an Associate Justice.” Of the two choices that federal law affords a retiring judge or justice, her retirement would therefore appear to have been a full “retire[ment] from the office” (under 28 U.S.C. § 371(a)). In short, O’Connor resigned and became a former justice; she did not just take “senior status.” Therefore, she was no longer a federal judge at all and has not been constitutionally eligible to serve as a judge pursuant to the designation-and-assignment authority of 28 U.S.C. § 294.
Here’s the longer argument:
1. Federal law (28 U.S.C. § 371) gives pension-eligible judges (including justices) two options for judicial retirement. One option (subpart (a) of § 371) involves leaving the federal bench entirely: a judge taking this option “retire[s] from the office.” For the sake of clarity, I’ll refer to this option (as the academic literature sometimes does) as “resignation.” Under the second option of “senior status” (subpart (b)), the retiring judge “retain[s] the office but retire[s] from regular active service.”
There are advantages and disadvantages to each option. For example, a judge who has resigned may freely pursue employment in the private sector and is no longer subject to the ethical restrictions that apply to all federal judges (including judges in senior status). But the pension of a resigned judge won’t benefit from any increases in the federal judicial salary. And a resigned judge can no longer perform the duties of a federal judge (unless, of course, he is re-appointed as a judge).
By contrast, a judge who has taken senior status (and who meets minimum workload requirements) benefits from salary increases and is able to continue to perform judicial duties. That judge remains subject to the Code of Conduct for United States Judges and to statutory restrictions on outside income. (If I’ve overlooked any significant advantages or disadvantages to either option, please let me know.)
2. When Justice Stevens sent his retirement letter to President Obama in April 2010, he clearly selected the “senior status” option: “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.”
Ditto for Justice Souter’s May 2009 letter to Obama stating his intention to retire: “When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 U.S.C. § 371(b)…. I mean to continue to render substantial judicial service as an Associate Justice.” The phrase that I’ve italicized emphasizes Souter’s understanding that he would retain the office of Associate Justice while in senior status.
By contrast, here’s how Justice O’Connor’s July 2005 letter to President Bush reads (emphasis added):
This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.
O’Connor’s statement, I acknowledge, isn’t as detailed as Stevens’s or Souter’s, but it would seem to me to be best read as taking the resignation option under subpart (a). In particular, her phrase “retire from my position as an Associate Justice” seems equivalent in meaning to subpart (a)’s phrase “retire from the office.” Thus, on this evidence, there would seem ample reason to think that the Administrative Office of the U.S. Courts is in error when it states that O’Connor “assumed senior status” in January 2006. (I’d guess that the Chief Justice has relied on the Administrative Office’s classification in assigning duties to O’Connor.)
What would alter this tentative judgment of mine? I offer a few possibilities:
First, it might well be that O’Connor’s phrasing turns out to be an accepted or conventional means of exercising the “senior status” option. (That seems unlikely to me.)
Second, it’s possible that O’Connor undertook to clarify or alter the terms of her retirement before her retirement became effective—that is, before Justice Alito was confirmed. If so, it would be interesting to see what form such a measure took—and there are lots of interesting questions about what forms would be valid. (I’m disinclined to believe that any post-retirement evidence would be relevant to the question, but am open to being persuaded otherwise.)
Third, it’s possible that some principle of interpretation would call for any doubts to be resolved in favor of the “senior status” option, perhaps on the ground that a retired judge can easily change from “senior status” to resigned, but can’t do the reverse. (Even if such a principle exists, however, it would first need to be established that O’Connor’s letter is ambiguous.) Or perhaps evidence of O’Connor’s contemporaneous subjective intention would clarify any ambiguity. (I don’t think that a judge’s subjective intention could override the contrary objective meaning of a retirement letter.)
3. If O’Connor did in fact resign, would she nonetheless be eligible to be designated and assigned to perform judicial duties pursuant to 28 U.S.C. § 294?
Whereas the statutory provision (subpart (b) of section 294) governing designation and assignment of retired lower-court judges is expressly limited to judges who have “retired from regular active service” under section 371(b) (or under a separate disability provision), the provision governing designation of retired justices doesn’t contain that limit. On its face, therefore, it could be read to authorize the Chief Justice to assign judicial duties to former justices who have resigned.
Such an authorization strikes me, at least at first blush, as unconstitutional. Article III judicial power may be exercised only by sitting Article III judges. Once a federal judge has resigned, that judge is no more authorized to exercise judicial power than are any of the 300 million other Americans who aren’t federal judges.
It may well be the case that Congress could confer on the Chief Justice the power to appoint some or all lower-court federal judges. See Art. II, section 2, cl. 2 (whereas the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court, … the Congress may be Law vest the Appointment of such inferior Officers, as they think proper, … in the Courts of Law”). But section 294(a) cannot plausibly be read as conferring an appointment authority; it merely authorizes retired justices to be “designated and assigned” by the Chief Justice. Further, under Article III any appointment authority would have to confer on the appointed judge life tenure in office (or, more precisely, tenure “during good Behaviour”)—something that section 294(a)’s designation-and-assignment of judicial duties does not remotely purport to confer.
4. This question isn’t academic. Losing litigants in the cases in which Justice O’Connor has sat post-retirement could seek to invalidate the adverse ruling. That would likely be the case even if the ruling was unanimous. See Nguyen v. United States (2003) (Supreme Court decision vacating unanimous ruling of three-member panel that included one non-Article III judge).
Again, I offer this argument only as a tentative sketch, and I welcome any corrections, disagreements, or additional information.