ACSBlog: The Blog of the American Constitution Society

by Randy Enochs, Editor at Large 

Chief Justice John Roberts ushered in the new year with an earthquake when he devoted his 2006 Year-End Report on the Federal Judiciary to what he considers to be a "constitutional crisis."  Chief Justice Roberts was speaking about "the failure to raise judicial pay" and those words are still creating shockwaves a quarter of a year later.

The crux of Chief Justice Roberts' report (with the help of charts in some instances) is that judges, approximately 40 years ago, used to come mostly from the private sector and now they come from the public sector, judges make less than law school faculty, their recent clerks and those who argue before them, some judges may be using their position as a mere stepping stone into the more lucrative private sector (whether out of necessity or not), that as judicial pay suffers so does the quality of the bench, and that life tenure is now compromised. 

Chief Justice Roberts' Year-End Report topic on judicial pay is not a novel one.  Former Chief Justice William Rehnquist made the same plea for numerous years with very little success.  Joseph Story, as a Massachusetts legislator, introduced an unpopular bill to increase the salaries of the Judges of the Massachusetts Supreme Court shortly after he was elected in 1805.  Story, successful in getting his bill passed, argued that "the practice of granting supplements—'which has the immediate tendency to place the judicial department at the footstool of the legislature'—compromised the integrity of the judiciary."  Indeed, the language of Article III of the U.S. Constitution prohibits the reduction of compensation for federal judges, but it is arguable that never raising it despite inflation and other attributes of cost-of-living amounts to the same level of harm reducing it does. 

Justices Scalia and Kennedy have rallied behind Chief Justice Roberts, adding fuel to the fire because their choice of words seem to hinder sympathetic ears.  Back on February 14, 2007, Justice Kennedy appeared before the Senate Judiciary Committee to testify on the subject of Judicial Security and Independence."  Justice Kennedy devoted a good portion of his presentation to judicial pay: 

Please accept my respectful submission that, to keep good faith with our basic charter, you have the unilateral constitutional obligation to act when another branch of government needs your assistance for the proper performance of its duties. It is both necessary and proper, furthermore, that we as judges should, and indeed must, advise you if we find that a threat to the judiciary as an institution has become so serious and debilitating that urgent relief is necessary. In my view, the present Congressional compensation policy for judicial officers is one of these matters.

However, it was rhetoric like, "in more than three decades as a judge, I have not seen my colleagues in the judiciary so dispirited as at the present time," and that the "nation is in danger of having a judiciary that is no longer considered one of the leading judiciaries of the world," that caused more stir.  Justice Scalia, just days before Chief Justice Roberts submitted his report, added his thoughts on the topic and stated, “If you become a federal judge in the Southern District of New York, you can’t raise a family on what the salary is.” 

Justice Kennedy's and Scalia's remarks then led to more compilations of numbers, figures and statistics in an effort to disprove their arguments.  Judge Posner of the 7th Circuit Court of Appeals recently listed a number of benefits overlooked by comparisons of just salaries:

 The most serious omission in Chief Justice Roberts's report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay (the ceiling on outside income, apart from investment income and royalties, and a very low ceiling given current law school salaries—which benefits judges, since they can teach less to reach their ceiling, as it is an ever-diminishing percentage of a professor's salary). The federal judicial pension is extremely generous--a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life; nor does he make any contribution to funding the pension. The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people. Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.

Some proponents of increased judicial salaries suggest adjusting salaries depending on factors like caseload—because the pay is flat across the board whether you preside over an extremely busy court or a low-traffic court—or based on where you preside (it is cheaper to be a federal judge in, say, the South than it is to be a federal judge in Manhattan).  An important question, however, is exactly how much this increase should be.  After all, what amount is going to address the argument about losing "the best jurists" to the private sector if the public sector cannot pay those comparable million-dollar-per-year salaries?  Another issue adding to the fray is the fact the current market for United States Supreme Court Clerks could not be better as some Clerks are receiving signing bonuses in excess of $200,000 on top of their starting salaries.  As Dahlia Lithwick notes: 

As [Justice Kennedy] testified just last month before the Senate Judiciary Committee, "Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before."