Contact:  Sandy Adkins
Communications Specialist
National Center for State Courts


As Congress considers using retired justices, most states already do

Williamsburg, Va. (Sept. 30, 2010) — As the new U.S. Supreme Court term opens on Monday, the court already knows it is going to be one justice short for more than 20 cases this session. The court's newest member, Associate Justice Elena Kagan, has announced she is recusing herself from 25 cases on which she worked in some capacity while U.S. solicitor general. 
The result of one justice recusing himself or herself could be a 4-4 tie, in which case the lower court opinion is automatically affirmed and the Supreme Court does not issue an opinion. To prevent these potential ties, Senate Judiciary Chairman Patrick Leahy, D-Vt., yesterday introduced legislation that would allow a retired Supreme Court justice to return to the bench temporarily in cases where an active justice has recused. Under Sen. Leahy's plan, a majority of the active justices of the Supreme Court would select the temporary replacement for the court. Currently, there are three retired justices: John Paul Stevens, David Souter, and Sandra Day O'Connor.

The issue of allowing a retired justice to return to service in the event of a recusal already has been resolved by the following 39 states and the District of Columbia, where retired justices are allowed to return to service on their courts of last resort:

Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma (Supreme Court and Court of Criminal Appeals), Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas (Supreme Court and Court of Criminal Appeals), Vermont, Virginia, Washington, West Virginia, Wyoming

Nineteen states use a plan similar to that introduced by Sen. Leahy to select the retired justice to return to the bench, and 16 states allow the chief justice to select the replacement. Many of the 19 courts of last resort that may call retired justices to service have, as a matter of practice, delegated this power to the chief justice. For example, New Jersey's Constitution specifies that any retired justice may be recalled "subject to rules of the Supreme Court." The state's Supreme Court, in turn, has granted this power by rule to the chief justice or whatever justice is serving as the presiding justice in the case or at the time.

The following is a breakdown by court of how retired justices are called back to service:

By the court (19): Arizona, Georgia, Idaho, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, Oregon, Oklahoma Supreme Court, Oklahoma Court of Criminal Appeals*, Pennsylvania, Washington, West Virginia

By the chief justice (16):
Alabama, Alaska, California, Connecticut, Delaware , Florida, Hawaii, Nevada, North Carolina, North Dakota, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, Wyoming

By the governor (5): Arkansas, Kentucky, Tennessee, Texas Supreme Court, Texas Court of Criminal Appeals

By other means (2): District of Columbia: Commission on Judicial Disabilities and Tenure; New Hampshire: randomly selected from all eligible retired justices

*Although a court of last resort in its own right, temporary vacancies in the Oklahoma Court of Criminal Appeals are filled by the state's other court of last resort, the Oklahoma Supreme Court.

While most state constitutions and statutes fail to specify why a retired justice may be called back into service, the following states do limit the return of retired justices to specific reasons:



Cause for Recall


“If a Supreme Court Justice is disqualified or temporarily unable to serve”


“If a full panel cannot be constituted from the seven members of the Supreme Court due to the disability or disqualification of one or more members”


“to sit in the Supreme Court [] temporarily to fill up the number of that Court to the required quorum.”


“If as many as two Justices decline or are unable to sit in the trial of any cause”


“to (a) sit in any court in the state to relieve congested dockets or to prevent the docket of such court from becoming congested or (b) sit for the judge of any court who may be incapacitated or absent for any reason whatsoever”

New Hampshire

“Upon the retirement, disqualification, or inability to sit of any justice of the supreme court”

North Carolina

“Upon the request of any justice of the Supreme Court who has been advised in writing by a reputable and competent physician that he is temporarily incapable of performing efficiently and promptly all the duties of his office”

North Dakota

“When any justice or judge has a conflict of interest in a pending cause or is unable to sit in court because he is physically or mentally incapacitated”


“In case of the sickness of any one (1) or more of the judges of the supreme court”

Texas Court of Criminal Appeals

when a justice is “disqualified to hear and determine any case or cases in said court”

Texas Supreme Court

when a justice is “disqualified to hear and determine any case or cases in said court”


“When necessary for the prompt and orderly administration of justice”


The NCSC Backgrounder is designed to provide the media with statistics and facts related to current issues of interest.

The National Center for State Courts, headquartered in Williamsburg, Va., is a nonprofit organization dedicated to improving the administration of justice by providing leadership and service to the state courts. Founded in 1971 by the Conference of Chief Justices and Chief Justice of the United States Warren E. Burger, NCSC provides education, training, technology, management, and research services to the nation's state courts.