From Reconstruction through the New Deal, Congress regularly used its power over the justices' pensions to incentivize or restrict judicial departures—and to otherwise exert leverage over the Court
Is Souter still hearing lower court cases? He regularly did so but have not heard of any in a while.
Did Kennedy or Breyer hear any lower court cases after leaving the Court? Again, I am not aware of any. I recall Breyer joining academia in some fashion.
One law professor thought Stevens never "really" retired & felt it unethical he proposed amendments and so forth.
Regarding the power of Congress to use pensions to motivate judicial retirement/etc I think that ship has sailed. They are certainly paid well but I suspect that any justice willing to trade the power and prestige of the court for cash could easily rake in far more just in speaking fees nowadays if they so choose not to mention what they could get if they became even a pro forma partner at some law firm.
Currently the justices tend to avoid this, in part because they are all fucking loaded, and also because they want the respect of seeming to have a sense of decorum etc.. which suggests that any pension bribery wouldn't work and that any big stick (retire or no pension, even if constitutional) could backfire.
Why can't you just say the justice appoints themselves to the position of retired justice? Supreme court judges can preside without the rest of the court in certain cases so they can wield the power of a court of law and thus congress can vest them with the power to appoint inferior officers.
The problem is that the justices aren't "courts of law" all by themselves, so a single justice can't make an appointment as required by the Appointments Clause. Perhaps one could argue that the full Court makes the appointment by *accepting* the retirement, but that implies that the full Court could *reject* a retirement, which seems equally implausible.
But can't individual justices wield the authority of the full court at certain times? For instance when they hear emergency appeals? Sure, the full court can usually override them but is that legally required? Couldn't you just let the individual justice appoint themselves under the same authority which lets them hear emergency appeals by themselves or in past times ride circuit and just say they exercise the authority of the court?
Hell couldn't congress literally pass a law establishing each justice as being an inferior court of law in its own right with no cases or duties except appointing themselves to retired status?
Nothing in Article III says that courts must act en banc when exercising *judicial power.* But the Appointments Clause specifically refers to Congress authorizing *appointments* by "the Courts of Law," not by individual judges or justices thereof.
Though I'm still troubled by that reading since it would seem to ban congress from vesting s court with the power to appoint an inferior officer by supermajority (if that's fine then why not by submajority of 1). Or from vesting a randomly choosen (eg 3 judges from DC circuit choosen by lot) 3 judge panel from making appointments. That seems like a weird way to read the power rather than allowing the power to be disposed of in whatever way congress specifies consistent with the usual exercise of judicial power including by panels/individuals.
And if that's what was meant then why use the plural? Surely that would be better described as "a court of law" not "the courts of law"?
But you obviously know far more about this than me so if you think that your reading is more plausible it probably is.
Maybe, but (1) Congress hasn't done that; and (2) you'd still have to have one of the bodies mentioned in the Appointments Clause in charge of putting the retired justice on that court.
The alternative is that retired justices aren't officers *at all,* and so don't trigger the Appointments Clause when they assume the position of "retired justice." But that interpretation raises issues all its own, especially given how much the Court has expanded its understanding of "officers" in recent years.
Ahh, right and the Senate wouldn't have confirmed them to this new special court even if they could going forward do it when they confirmed them to SCOTUS. Good point!
Is Souter still hearing lower court cases? He regularly did so but have not heard of any in a while.
Did Kennedy or Breyer hear any lower court cases after leaving the Court? Again, I am not aware of any. I recall Breyer joining academia in some fashion.
One law professor thought Stevens never "really" retired & felt it unethical he proposed amendments and so forth.
Amendments?
Stevens wrote a book entitled "Six Amendments" involving proposals to amend the Constitution. He also promoted the ideas in other ways.
https://joshblackman.com/blog/2014/04/30/the-code-of-conduct-and-justice-stevenss-testimony-to-the-senate/ [I like the citation of Alito as a voice of wisdom]
Regarding the power of Congress to use pensions to motivate judicial retirement/etc I think that ship has sailed. They are certainly paid well but I suspect that any justice willing to trade the power and prestige of the court for cash could easily rake in far more just in speaking fees nowadays if they so choose not to mention what they could get if they became even a pro forma partner at some law firm.
Currently the justices tend to avoid this, in part because they are all fucking loaded, and also because they want the respect of seeming to have a sense of decorum etc.. which suggests that any pension bribery wouldn't work and that any big stick (retire or no pension, even if constitutional) could backfire.
Why can't you just say the justice appoints themselves to the position of retired justice? Supreme court judges can preside without the rest of the court in certain cases so they can wield the power of a court of law and thus congress can vest them with the power to appoint inferior officers.
The problem is that the justices aren't "courts of law" all by themselves, so a single justice can't make an appointment as required by the Appointments Clause. Perhaps one could argue that the full Court makes the appointment by *accepting* the retirement, but that implies that the full Court could *reject* a retirement, which seems equally implausible.
But can't individual justices wield the authority of the full court at certain times? For instance when they hear emergency appeals? Sure, the full court can usually override them but is that legally required? Couldn't you just let the individual justice appoint themselves under the same authority which lets them hear emergency appeals by themselves or in past times ride circuit and just say they exercise the authority of the court?
Hell couldn't congress literally pass a law establishing each justice as being an inferior court of law in its own right with no cases or duties except appointing themselves to retired status?
Nothing in Article III says that courts must act en banc when exercising *judicial power.* But the Appointments Clause specifically refers to Congress authorizing *appointments* by "the Courts of Law," not by individual judges or justices thereof.
Though I'm still troubled by that reading since it would seem to ban congress from vesting s court with the power to appoint an inferior officer by supermajority (if that's fine then why not by submajority of 1). Or from vesting a randomly choosen (eg 3 judges from DC circuit choosen by lot) 3 judge panel from making appointments. That seems like a weird way to read the power rather than allowing the power to be disposed of in whatever way congress specifies consistent with the usual exercise of judicial power including by panels/individuals.
And if that's what was meant then why use the plural? Surely that would be better described as "a court of law" not "the courts of law"?
But you obviously know far more about this than me so if you think that your reading is more plausible it probably is.
Ok I see that point but couldn't congress just create a new special court for each justice with no other duties?
Maybe, but (1) Congress hasn't done that; and (2) you'd still have to have one of the bodies mentioned in the Appointments Clause in charge of putting the retired justice on that court.
The alternative is that retired justices aren't officers *at all,* and so don't trigger the Appointments Clause when they assume the position of "retired justice." But that interpretation raises issues all its own, especially given how much the Court has expanded its understanding of "officers" in recent years.
Ahh, right and the Senate wouldn't have confirmed them to this new special court even if they could going forward do it when they confirmed them to SCOTUS. Good point!