In Stuart v. Laird, 1 Cranch (5 U.S.) 299 (1803), the Court upheld, first, the congressional abolition of the circuit courts created by the outgoing administration in the Judiciary Act of 1801; and, second, the circuit-riding practice that had existed from the beginning of the Court. The decision was rendered six days after Marbury v. Madison, with Chief Justice Marshall not participating - he had tried the case and heard the appeal in question in his capacity as a circuit judge. The abolition and re- creation of the circuit courts in a different form had the effect of leaving 17 appointed judges without any cases to decide. And, more pertinent here, the decision also held that Supreme Court justices could be required by statute to sit as lower court judges. Stuart v. Laird establishes the proposition that Congress has broad power to define and redefine the "Office" of a federal judge, including that of a Supreme Court justice, and that a contemporaneous intermixture of duties on the Supreme Court with those of a lower Article III court is constitutionally permissible.

Opposing arguments, rejected in the decision, rest on the uniqueness of the constitutional position of the Supreme Court as the only federal court that Art. III, § 1 requires Congress to "establish." Article III does confer an uncertain degree of uniqueness on the Court, but that uniqueness does not include the requirement that the office of being a Supreme Court justice cannot be combined with subsequent service on other constitutional courts. Stuart v. Laird established that contemporaneous service on the Court and inferior courts could be required. The statutory proposal advanced here rests on the proposition that Article III, read in conjunction with the Good Behavior Clause, does not deprive Congress of authority to layer lifetime service in ways that respond to circumstances that exist today and were not foreseen in 1789.

For many years Congress and the federal judiciary have struggled to apply this constitutional language to a federal judicial system that has currently grown to 853 authorized Article III judges and carries on its judicial business with a total judicial complement that far outnumbers the authorized Article III judges and their senior status colleagues. A large portion of federal judicial business is handled by nearly 3000 judicial officers who do not have life tenure: 1,328 statutory judges (magistrates and bankruptcy court judges), 29 judges and senior judges of the Federal Court of Claims, and 1370 administrative law judges. Efficient utilization of the services of the minority who are Article III judges is a major endeavor.