essential to continuing to hold office as a federal judge, and that deciding Supreme Court cases is not essential to continuing to hold the office of a Supreme Court Justice.
In support of this conclusion, proponents argue that the Supreme Court approved this system for senior judges in Booth v. United States.[65] In Booth, a unanimous Supreme Court held that a lower court federal judge who retired under the predecessor of § 371(b) “remains in office” within the meaning of Article III, Section 1.[66] The Court pointed out that senior judges exercise the judicial power of the United States in deciding cases when designated to do so. “It is scarcely necessary to say that a retired judge’s judicial acts would be illegal unless he who performed them held the office of judge. It is a contradiction in terms to assert that one who has retired in accordance with the statute may continue to function as a federal judge and yet not hold the office of a judge.”[67] On one reading of Booth, a statutory change of duties does not remove a judge from office as long as “[t]he purpose is … that he shall continue … to perform judicial service.”[68] The Supreme Court reaffirmed this reasoning in 2003 in Nguyen v. United States.[69]
Booth thus distinguishes between a change in duties, which is within the power of Congress, and removal from office or reduction in compensation, which are not: “Congress may lighten judicial duties, though it is without power to abolish the office or to diminish the compensation appertaining to it.”[70] Moreover, those who believe statutory term limits are constitutional argue that the reasoning of Booth and Nguyen also extends to retired Justices. Retired Justices such as David Souter and Sandra Day O’Connor have often participated in courts of appeals decisions pursuant to 28 U.S.C. § 294. When they do, proponents of the Junior/Senior Justice proposal believe they are best understood as having retained their office as Supreme Court Justices because they are exercising federal power and they have not been appointed to any new office. Hence, proponents conclude, Senior Justices retain the office of Justice of the Supreme Court even if their duties have changed and no longer include participation in the ordinary work of the Court. Critics, however, believe that retired Justices still hold federal judicial office, which is required under Booth if they are to exercise federal judicial power, but that they do not necessarily continue to occupy the constitutional office of Supreme Court Justice.[71]
Setting Booth aside, critics believe that the best understanding of the Constitution forbids the change in duties that the Junior/Senior Justice proposal entails. One constitutional scholar puts the argument this way: “To say there is a particular office of Supreme Court Justice, as opposed to federal judge in general, is to say that the Constitution contemplates some connection between the justices and the work of the Court.”[72] On one view, because the Court
