Although the Court's annual term lasts for about nine months, it now hears oral argument in only about 75-100 cases during September-November and January-May. During that time, a Justice must write on average about one opinion of the Court a month; there were only 75 signed opinions of the Court in the 2004 Term. Time spent hearing oral argument has been reduced to an average of six hours a week during term time. A comparable amount of time is required for conferences with other justices. Justices may and do choose to write concurrences and dissents. And time must be spent to decide which cases should be among the few the Court will decide.

To perform these duties, each justice is provided with four very able and energetic young law clerks and with ample secretarial and other help. Justices are, of course, deeply concerned with the quality of work done in their chambers, but much of the work of the justices can be delegated and each justice is provided with capable delegates. Justices do very little "scut work" and are thus liberated from the wear and tear associated with most jobs. A justice must be in very bad shape indeed to be unable to perform at a level that does not call attention to his or her disabilities. This is particularly the case when a justice has served a number of years on the Court and has well-developed positions on constitutional and other policy questions.

Current arrangements provide strong incentives for harmful strategic behavior by justices, presidents, and senators.

The randomness of a justice's death or a justice's choice of a time of retirement may lead to one president getting three appointments (as President Nixon did) and another none (President Carter's experience). If another justice chooses to retire before 2008 (Justice Kennedy, for example, is 83), President Bush may receive a third appointment to the Court. Such an event might lead to a faction of five or six justices controlling the Court's decisions for one or two decades. Similarly, presidents have an incentive to appoint younger, but like-minded, appointees who were serve for a very long period. Fortunately, this has happened only infrequently in recent years; Justice Thomas, appointed at age 43, is the most recent example.

In the past, a number of justices have attempted to hold on to their office for two primary reasons: First, they enjoy the celebrity of the office and the ever-increasing power the office has to shape U.S. policy on important issues. Second, they sometimes want to stay until a like-minded president would made the appointment. This has resulted in repeated instances of justices becoming physically and mentally impaired during their final years on the Court.

Justice Black, appointed in 1937, attempted but failed to survive President Nixon's two terms; he was in his eighties during his final years and his eyesight and health had deteriorated. Justice Douglas held on to office for nearly 38 years, the longest service in the nation's history. During his final years, when he was in the mid-eighties, Douglas was first physically disabled and then mentally impaired, but he refused to retire until public embarrassment from his evident disability forced him to do so. Shortly thereafter, two other long-serving Justices, William J. Brennan, Jr. and Thurgood Marshall, followed the same pattern, staying on into their eighties despite physical and mental impairment that became more and more evident. Since then justices have tended to retire before their disability became evident in public, and only two (Whittaker and perhaps Rehnquist) appear to have stayed on longer than they should have.