Presidential Commission on the Supreme Court of the United States
senior status. Thereafter, these “Senior Justices” would no longer participate regularly in the ordinary work of the Court. But they would perform other duties, including sitting by designation in the lower federal courts and assisting the Chief Justice with administrative duties. Congress could specify these duties by statute, or it could leave it to the Justices themselves to decide on them through an internal rule.[55]
If the duties of Senior Justices were not sufficiently germane to the office of a Supreme Court Justice, the change in duties might amount to appointment to a new office. This would require a new nomination by the President and confirmation by the Senate. However, it is not clear that the germaneness requirement applies to the prospective redefinition of an office. In any case, the Supreme Court’s understanding of germaneness appears to be very broad. In Weiss v. United States,[56] for example, the Court held that the duties of a military judge were sufficiently germane to the duties of a commissioned officer that the officer could be designated to serve as a judge without going through the appointments process.
The Justices already perform the duties listed above and that would pertain to Senior Justices under the proposal. Current federal law authorizes Justices to sit on circuit courts.[57] And as a historical matter, federal law long required the Justices to sit on other federal courts in addition to hearing cases on the Supreme Court. For almost all of the first hundred years of the Republic, Supreme Court Justices “rode circuit”: they heard and decided cases in the lower federal courts. With the Judiciary Act of 1801, Congress abolished circuit riding, only to reinstate it in the Repeal Act of 1802 after control of Congress changed hands. The Supreme Court rejected a constitutional challenge to the 1802 Act in Stuart v. Laird,[58] in which the challenger sought to reverse a circuit court’s judgment partly on the ground that “the judges of the supreme court have no right to sit as circuit judges, not being appointed as such.”[59] The Supreme Court responded that circuit riding was so well established that its validity was no longer open to question: “[P]ractice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.”[60] Justices continued to have circuit-riding duties until the late nineteenth century.[61]
Existing practice and precedent offer a model for the types of duties Senior Justices might perform. A federal statute, 28 U.S.C. § 371, provides two options for federal judges, including Supreme Court Justices, who meet certain service and age requirements. They may “retire from the office” under § 371(a), at which point they no longer hold the office of federal judge or Justice but continue to receive an annuity equivalent to their salary at the time of retirement. Or they may “retain the office but retire from regular active service” under § 371(b) and
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