This history reveals problems that should be solved by federal statute. Paul D. Carrington and I have developed a statutory reform proposal that is supported in principle, although not necessarily in all of its details, by about fifty eminent constitutional law and federal courts scholars in the United States. The proposed statute would amend the U.S. Judicial Code to redefine the "office" of being a Supreme Court justice to involve lifetime service on a federal constitutional court but with the tenure of service on the U.S. Supreme Court running for only a fixed period, such as eighteen years. Such a period would be long enough for the development and implementation of a well-rounded understanding of federal law, but not lead to a justice operating for a very long time on intellectual autopilot without any new ideas. It also would lead to a new justice being appointed every two years, making the Court more accountable to the popular will but providing a great deal of stability and continuity on the Court as a whole. A complete turnover in the Court's personnel would usually then occur after about eighteen years.

The proposed Act deals directly with the lengthening of service, gives equal weight in the appointment of justices to each federal election, reduces the opportunities for individual justices and presidents to manipulate current arrangements to perpetuate their own predilections, and may have a beneficial indirect influence on the exercise of judicial power by encouraging judicial restraint. Yet it does not impair the necessary independence of the judiciary from the political branches of government.

The proposed act would lead to a new appointment to the Court being made during the first session of Congress after each federal election (i.e., an appointment in every odd-numbered year). The office to which these justices are appointed will still result in judicial service as a constitutional court judge "during good behavior;" they will continue to exercise Article III judicial power until they die, elect to retire, or are removed from office. Judicial independence in the exercise of the Court's judicial power will thus remain intact. The redefined office would involve participation in the adjudicatory activity of the Supreme Court for a period of eighteen years with each appointment beginning on August 1 of the year following a federal election and ending on July 31 eighteen years later. Because each appointment begins in midsummer, when the Supreme Court is in recess, the effect on the Court's ongoing work would be minimized. A regular rotation in the personnel who exercise the Supreme Court's extraordinary power would result.

The full effectiveness of this rotation would be delayed an indeterminate number of years if the Act did not apply to current members of the Court. This approach seems appropriate for two reasons: First, the elimination of a retroactivity argument strengthens the argument that the Act is consistent with the Constitution. Second, it avoids the criticism that the Act is designed to remove specific individuals from the Supreme Court. However, enactment of the statute may persuade individual justices to respect the policy considerations embodied in the Act, leading them voluntarily to take senior status or retire when they have served eighteen years.