After Justice Scalia’s death, instead of reducing the size of the court to eight justices, Congress should have passed the following law, which would allow retired justices to return to the Supreme Court in case of sudden vacancy.
We hope in 2020 it gets a closer consideration.
Section 294 of title 28, United States Code, is amended—
(1) by amending subsection (a) to read as follows:
“(a) Any Chief Justice of the United States or Associate Justice of the Supreme Court who has retired from regular active service under section 371(b) of this title shall be known and designated as a Senior Justice and may continue to perform such judicial duties as such Justice is willing and able to undertake.”;
(2) by inserting after subsection (d) the following:
“(e)(1) When there is a vacancy on the Supreme Court due to the death, disability certification under section 372, or removal of a Justice, the retired Chief Justice of the United States or retired Associate Justice of the Supreme Court who has most recently become a Senior Justice shall be designated and assigned to serve as a Justice until an appointment is made under Article II, Section 2, Clause 2 of the Constitution of the United States.
“(2) If there is more than one vacancy on the Supreme Court, the Senior Justice who has served in such capacity for the longest amount of time shall be designated and assigned to serve as a Justice until each vacancy on the Supreme Court is filled.
“(f) Any Chief Justice of the United States or Associate Justice of the Supreme Court who has retired from regular active service under section 372 may not be a Senior Justice.”.