JURIST Guest Columnist Scott Gerber of Ohio Northern University Pettit College of Law says that the case for higher salaries for federal judges is far less clear than Chief Justice Roberts and others make it out to be…

William H. Rehnquist lobbied tirelessly during his two decades as
chief justice of the United States for pay increases for federal judges. Rehnquist’s replacement, John G. Roberts, Jr., is picking up where the late chief justice left off. Roberts warns in his first report on the state of the federal judiciary that Congress’s failure to raise judicial salaries beyond a modest cost-of-living increase represents a “direct threat to judicial independence.”

The founding fathers certainly took judicial independence seriously. Not only did the Declaration of Independence criticize King George III for making “Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries,” but the Constitution itself endeavors to secure judicial independence by making the judiciary a separate branch of government, by awarding federal judges life tenure during good behavior, and by guaranteeing them a salary that cannot be diminished while they are in office.

Indeed, the framers said quite a bit about judicial compensation during the Constitutional Convention of 1787. For example, the Virginia Plan introduced by Edmund Randolph on May 29, 1787, forbade both increases and decreases in federal judicial salaries. Pennsylvania’s Gouverneur Morris quickly moved to permit periodic increases. He made the obvious point in support of his motion that “the value of money” may fluctuate during a judge’s tenure in office. He also suggested that likely changes in “the style of living” and in the volume of judicial business warranted a provision in the Constitution for periodic increases. He added “that this would not create any improper dependence in the Judges.”

James Madison, the author of the Virginia Plan, opposed Morris’s motion, principally on the ground that judicial independence can be compromised as much by the lure of an increase in pay as by the threat of a decrease. He informed the federal convention that “[w]henever an increase is wished by the Judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt toward the latter” and that “it will be improper even so far to permit a dependence.” He recommended accounting for inflation “by taking for a standard [of compensation] wheat or some other thing of permanent value.” He also maintained that “[t]he increase of business will be provided for by an increase of the number who are able to do it” (in other words, by the appointment of more judges).

Madison’s opposition proved ineffective, however. On July 18, 1787, the convention passed Morris’s motion to permit periodic increases—but not decreases—in the salary of federal judges. Article III, section 1, provides: “Judges . . . shall . . . receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Although the preceding discussion might seem to support the Rehnquist/Roberts call for salary increases for federal judges, I don’t think it does. After all, federal district judges earn $165,200 a year, court of appeals judges receive $175,100, and associate justices of the Supreme Court make $203,000, with the chief justice earning an extra $9,100. That’s a more than livable wage, as the vast majority of American workers would attest. It’s certainly less money than many lawyers make in big-city law firms—a point emphasized by the chief justice—but lawyers in big-city law firms get paid too much. Just ask their clients. . .

Moreover, many federal judges spent a large portion of their professional lives prior to being named to the bench politicking to be appointed. It therefore rings a bit hollow, at least to me, for these same men and women to complain that making $165,200 to $212,100 a year is too much of a “sacrifice.” If it is, resign. There are more than enough competent lawyers to replace them.

Last but far from least, although most federal judges will deny it to their dying days, they don’t work very hard. For example, the U.S. Supreme Court takes less than a hundred cases a year. That workload is split among nine justices. Each of the nine justices has a handful of extremely bright law clerks to help them with their work, and they also get the benefit of legal briefs submitted by lawyers who spent a lot of time and money researching and writing them. To oversimplify a bit (but just a bit), all the justices need to do is pick the argument they like the best. That’s not difficult to do. Certainly, anyone making six figures a year should be able to do it. Again, if they can’t, or if they don’t want to, there are more than enough capable lawyers waiting in the wings who would be happy to switch places with them.

There may be a lot of problems with the state of the federal judiciary these days, but the adequacy of judicial compensation isn’t one of them.

Scott D. Gerber is a law professor at Ohio Northern University. He is currently writing a book on the origins of an independent judiciary. His first legal thriller, The Law Clerk, will be published next month by Seven Locks Press.
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