The Constitution the justices interpret is extremely difficult to amend - perhaps more difficult to amend than any other on the planet - and the word of the justices is the last word on many important political questions. The result is that many major policy issues are removed from any opportunity of political correction. Whatever one\'s view on a particular issue of individual rights or government structure, the removal of these questions from any legislative authority creates frustration and bitterness because it leaves those in dissent with no practicable political recourse. The compromise and mutual accommodation characteristic of the legislative process, and the possibility of revision, make that form of lawmaking less divisive and contentious. Experience of other constitutional governments in dealing with gravely divisive issues confirms that this is so.

The political prominence of the Supreme Court and its justices has been steadily enlarged in recent decades. In each of the last six presidential elections the identity of persons or types of person the rival candidates might appoint to the Court has been an important issue. In the aftermath of the 2000 election, the Court in a total unique proceeding selected the president who would nominate its own members. Supreme Court appointments have become politically contentious not only because the justices exercise great power but because they exercise it for so long.

This problem of persons holding very high political office for decades on end is unique to the Supreme Court of the United States. In the last century and a half, hundreds of constitutions have been written and ratified. Many of these became the law of American states, while many others have been adopted in nations that share our commitment to individual freedom and representative democracy. None of these hundreds of constitutions has provided for a court of last resort staffed by judges who are entitled to remain in service until they die or are found guilty of very serious misfeasance. Every group of constitution makers - forced to think responsibly about the issue under modern conditions - has concluded that there must be periodic movement of persons through offices in which so much power is vested, either through the imposition of term limits or age limits, by requiring reelection from time to time, or by allowing for removal by legislative action.

Direct application of these remedies to the Supreme Court would require a constitutional amendment. Our effort has been to craft a statutory provision falling within the broad authority of Congress to legislate concerning matters relevant to the definition of the "office" of being a judge of an Article III court such as the Supreme Court. Congress possesses and has long exercised broad legislative authority concerning the structure of the federal court system, the jurisdiction and procedure of federal courts, the number of judges or justices, the terms of their service and retirement, and their compensation.

Second, the increased power and status of Supreme Court justices carry dangers of arrogance, hubris and abuse that will grow as terms continue to lengthen.

The Federalist Papers emphasized that representative government was dependent upon rotation in office on the part of those exercising political authority and that the exercise of political power had to be checked by the tripartite structure of the federal government and the role of the states as governments closer to the people. While Article III judges were exempt from rotation, 18th and 19th century circumstances made fairly frequent rotation of justices almost certain to occur. And it did occur until recently. During 215 years of the Court\'s history (1789-2004), 102 justices were appointed to the Court - an average of a new appointment every 2.1 years. But justices in the past thirty years have served about eleven years longer and been about eleven years older at the time of retirement or death than their predecessors during the prior two hundred years.