Article III, Section 1 of the Constitution provides that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior . . . ." This language can be read as drawing a distinction between the office of "Judges" of the Supreme Court and of "Judges" of the inferior courts, even though both are entitled to life tenure under the same provision. But this construction, reaching the conclusion that tenure as a Supreme Court justice must continue in that capacity for life, is not a necessary reading. An equally plausible and straightforward interpretation would read it as requiring that "Judges" at all levels ("both of the supreme and inferior Courts") must enjoy life tenure but that the office of each may include not only contemporaneous service, as held in Stuart v. Laird, but successive service that started in the Supreme Court and moved to a lower court or vice versa.

The choice between two plausible interpretations should be influenced or controlled by a purposive or functionalist reading of the Good Behavior Clause, read in conjunction with the Necessary and Proper Clause. The function and purpose of the Good Behavior Clause is apparent from the uniformity of statements both of those supporting and opposing the Constitution: Its purpose was to ensure that federal judges acted in a judicial capacity that was not subject to the influence or control of the political branches of the federal government. "Judicial independence" has become the rubric for an essential requirement: decisions of federal judges must be protected from improper executive or congressional influence, approval or retaliation. This purpose is served by a definition of judicial office that guarantees life tenure and includes a lengthy and fixed term of service in the judicial work of the Supreme Court. The proposed statute is constitutional because (1) it provides for life tenure on a constitutional court and (2) the term of full service on the Supreme Court is lengthy, fixed in time, non-renewable and cannot be affected by the political branches of government. The proposed Act protects judicial independence just as well as do current arrangements.

The proposed legislation deals with a problem that is as sensitive as it is important. In advancing a detailed proposal, we do not mean to exclude simpler or better proposals that address the problem more effectively or have a better chance of enactment. Our aim in confronting the detail of a statutory resolution of this complex problem is to convince the reader that rotation in the membership of the Supreme Court is not only indispensable but feasible. The problem of rotation is a stunning example of the adage that what is everyone's business is no one's special concern. On that account, the problem has been permitted to languish for far too long. Congress should face the problem squarely and provide an adequate remedy.