Unchecked power, the Founders correctly believed, has a tendency to produce a degree of hubris and arrogance among those who exercise that power. Many thoughtful citizens are persuaded that even now the Supreme Court's conception and exercise of its power have manifested those traits. And more are likely to reach that conclusion if the trend toward longer periods of service continues.

The result is a situation needing correction. Liberals and conservatives will identify different decisions or lines of authority that they believe involve over-reaching by the current Court and its recent predecessors, but both can agree that the extension of the Court's political role and its unchecked quality have created a serious problem that will only grow worse if left unattended.

Third, increased longevity enables Supreme Court justices, unlike lower court federal judges, to continue serving until incapacitated because the conditions under which they now work enable them to do so. It has long been recognized that the life tenure of federal judges has created problems of sitting judges who have suffered loss in energy or mental capacity, become disabled or disturbed, or have served too long. During the twentieth century the Congress gradually devised a system of dealing with the aging of federal judges that works reasonably well with judges of United States district courts and circuit courts. These judges are provided with very generous retirement benefits, and those who take "senior status" can enjoy full paychecks with a reduced workload. Elderly judges of these courts almost invariably elect this option, usually at about age 65. And Congress has devised a procedure, conducted by the judiciary itself through the circuit councils, of reducing or canceling the work assignments of those district and circuit judges who are physically or mentally unable to perform.

The rotation in office that results from the retirement of lower federal court judges is assisted by the fact that the work of these judges is not under their own control but is dependent on the caseloads created by litigants and their lawyers. Substantial and steady growth in the caseloads of trial and appellate federal courts occurs faster than congressional willingness to create new judicial positions. The heavy burden of a caseload that can not be delegated to others leads these judges to choose senior status or retirement when they reach the ordinary retirement ages of 65-68.

None of these forces apply to justices of the Supreme Court who may be disabled or superannuated or have been in service too long. Although justices are permitted by law to take senior status, none do so unless their personal condition has rendered further service on the Court virtually impossible or there is reason to believe that a timely surrender of a seat will assure the appointment of a successor who is like-minded on the issues that come before the Court.

Unlike the judges of lower federal courts, the Supreme Court now controls its own workload. This control was conferred in part by a 1925 statute and then broadened in 1988 by the virtual elimination of the right of a party to invoke the jurisdiction of the Court. Since then, the Court has had virtually total control over its own workload, an opportunity it has freely exercised. Although the Court assured Congress in 1925 that it would continue to decide about 350 cases a year on the merits, the Court year after year has reduced the number of cases decided on the merits and now decides only about 75-85 cases a year. Meanwhile, conflicting decisions between lower federal courts on federal questions have continued to grow in number, creating inequality in treatment of persons and litigants in the various federal circuits and between lower federal courts and the high courts of American states. The Court now takes the position that federal or state legislation, not its decisions, must deal with the inequalities and costs of these conflicting decisions.