Reforming the Supreme Court has become a topic of serious consideration in recent years, especially as justices’ average tenures grow long past the historic average of 16 years. One of the most popular proposals is to create term limits. For example, justices would serve for 18 years, after which they would retain their office but become senior justices with altered duties.
But if justices choose to leave the bench entirely rather than stay on as senior justices, should there be restrictions on what they can do next? To be clear, the question is not unique to Supreme Court justices. It applies with equal force to any Article III federal judge. Indeed, even without term limits, there is nothing that currently prevents a judge or justice from stepping off the bench and embarking on a lucrative career in private practice.
There are already laws limiting former members of Congress from lobbying their former colleagues and restrictions on executive and legislative branch employees from acting in a representational capacity in certain matters involving their prior government employment. To protect the integrity of judicial proceedings and the legitimacy of courts, limits are also needed on the activities of former federal judges, including Supreme Court justices.
Some of the most challenging questions arise if former judges or justices want to practice law. Can former jurists join law firms and appear before their former colleagues? Can they argue in court papers about the meaning of cases they have decided? Should they be permitted to practice law at all? If so, what limits, if any, should be imposed?
These are not far-fetched questions. Professor Amy Salzyn reports that in Canada, where judges must retire at age 75, 11 of the last 15 Supreme Court justices who retired from the bench have joined private law firms. Some left the bench well before age 75.
In the United States, we already see federal district court and court of appeals judges leaving the bench to practice law. In recent years, almost 40 percent of lower court federal judges who leave the bench move into private practice. Many go to work at large law firms, where they may make 10 times what they earned as judges.
These moves into law practice by former federal judges are only lightly regulated. There are no rules limiting former judges from appearing before their former colleagues, except in matters in which they “personally and substantially” participated as a judge. The Federal Judicial Conference’s Committee on Codes of Conduct Advisory Opinion merely recommends that courts adopt policies that judges recuse themselves for one or two years when a former colleague appears in a case.
There should no doubt be more limits on the work of all former federal judges, including Supreme Court justices.
There are lessons to be learned from other common law countries that have grappled with these issues due to mandatory retirement ages for high court justices. Although the convention in the United Kingdom was that High Court and higher justices would not take on post-retirement legal work, that norm has eroded in recent years. In Australia, states impose a ban of two to five years on former judges appearing before the court on which they sat and courts from which they heard appeals. There is no ban, however, on out-of-court legal work.
In Canada, Ontario takes the toughest approach. The Law Society of Ontario’s Rules of Professional Conduct ban retired justices of the Supreme Court of Canada and certain other judges from appearing as counsel in any court, or in chambers, or before an administrative board, without the approval of the Law Society Tribunal. Permission can only be granted in exceptional circumstances.
Some have argued in the United States against imposing limits on the employment of former federal judges, saying it will make it harder to recruit judges. It seems doubtful, however, that limits on law practice after leaving the federal bench will significantly limit the pool of qualified individuals who wish to become federal judges, including Supreme Court justices.
To reduce the perception — or reality — that future employment prospects will unfairly influence judicial decision-making while judges are on the bench, the United States can learn from Canada. The Canadian Judicial Council, which oversees federally appointed judges, states that judges should not discuss post-judicial employment with law firms before they have officially resigned or retired. Indeed, federal judges, including Supreme Court justices, should not be permitted to discuss employment opportunities with any potential employer until after leaving the bench.
Ontario’s rule limiting Canadian Supreme Court justices from appearing “as counsel or advocate in any court, or in chambers” also makes sense. The Canadian Judicial Council further advises former judges and justices not to sign court documents that are, or may be, the subject of court proceedings. Even this may not go far enough. In fairness to litigants, there might also be a time-limited ban on mooting oral arguments that will be made to their former court and on advising on arguments to make to that court.
Indeed, a case could be made for prohibiting former federal judges, including the justices, from engaging in any law practice apart from acting as a neutral arbitrator or mediator. This is, in fact, an activity in which many former judges engage. They could still derive some of the financial benefits of joining a law firm but would be precluded from using their former positions to benefit one side or another.
Especially if former Supreme Court justices are permitted to practice law, there should be some limitations. Unfortunately, the Supreme Court has shown little appetite for adopting enforceable rules governing sitting justices’ conduct, and as noted, the applicable codes of conduct do not significantly limit lower court judges once they decide to leave the bench. Congress can enact certain limits. Revised rules of professional conduct could also provide a basis for discipline.
The content of any restrictions requires careful consideration. Nevertheless, the need to think through these issues should not stand in the way of creating Supreme Court term limits. When there is an opportunity to enact this reform, Congress should also consider how to fill gaps in the current laws governing the activities of former federal judges and justices.
