Problems of misconduct in office by Article III judges or physical or mental decrepitude interfering with the proper administration of justice have led to statutory procedures by which complaints against judges of U.S. district and circuit courts may be considered and remedied by action through the respective circuit councils. 42 U.S.C. § 351-364. On rare occasions the cases assigned to a judge have been reassigned and no new cases assigned. These methods of judicial discipline, which are authorized by statute and implemented by the federal judiciary, have withstood challenges to their constitutionality. See Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 84 (1970), in which Chief Justice Burger stated in dictum: "[There is] no disagreement among us as to the imperative need for total and absolute independence of judges in deciding cases. . . . [But] Congress can vest in the Judicial Council the power to enforce reasonable standards as to when and where court shall be held, how long a case may be delayed in decision, whether a given case is to be tried, and many other routine [administrative] matters."). Although these internal disciplinary mechanisms do not apply to the Supreme Court, the Court at least in one instance in the twentieth century determined that the vote of an impaired justice, Justice Douglas, would not be taken into account if that vote would decide the case.

Other longstanding practices authorized by statute involve the designation of Article III judges to provide judicial services in a court other than that of initial appointment. 28 U.S.C. §§ 291-294. These designation practices are designed to further the efficiency of the system and encourage the continuing involvement of Article III judges in its work. Under them a judge appointed by one federal court may handle the judicial business of another: (1) retired Supreme Court justices and retired lower court federal judges may sit on lower federal courts; (2) the chief judges of a circuit court may designate district judges to serve on appellate panels of the circuit court; and (3) the Chief Justice and the chief judge of a circuit may designate a lower court judge of one judicial circuit to serve in another circuit.

The Act proposed here was designed with these elements of current law and practice in mind. Thus a senior justice continues to participate in the work of the Supreme Court in two ways: (1) full participation until retirement or death in the rule-making authority of the Court; and (2) the recall of a senior justice to fill a temporary vacancy or to provide a full Court in situations of recusal or temporary disability in the term or terms immediately following becoming a senior justice.

The circuit riding required of Supreme Court justices in the 19th century (a practice that led to some justices retiring early) and upheld by the Court in Stuart v. Laird, establishes that today's justices could be required, for example, to spend three months per year handling cases as a circuit or district court judge. The question, then, is whether spreading the alternative constitutional court service over time is somehow different from contemporaneous service.