Federal judges take their own case to court – for more pay

Mr. Duff declined to discuss the pending lawsuit. "We continue to believe and hope that the best solution to this is a legislative one," he says.

The judicial pay problem is particularly acute in major urban areas, Duff says: "$174,000 a year is still a great salary in Booneville, Ky., where my family is from. But in New York or Washington or San Francisco, it is not [a great salary] when you are raising a family and trying to send children to college and so forth."

In the top US cities, a judge's former law clerk may earn more in the first year of private practice than the judge he or she clerked for. Many government lawyers also earn significantly more than federal judges.

In 2007 testimony before Congress, Justice Samuel Alito explored the issue by referring to an ad for new lawyers at the Securities and Exchange Commission. The advertised pay for a supervisory attorney at the SEC was $26,000 more than a federal judge was earning at the time. The pay for a trial attorney was $10,000 more.

"It would be reasonable to conclude," Justice Alito said, "that a district judge who presided over an SEC case may be the lowest-paid attorney in the courtroom."

Federal judges are appointed for life, in part because the Founding Fathers wished to create a branch of government largely insulated from political pressures. The Founders were also concerned about potential financial pressures, so they included in Article III of the Constitution a mandate that Congress not reduce a judge's pay.

For the past 20 years, Congress has linked cost-of-living and salary increases for the judiciary with its own compensation. Senators, members of the House, and US district judges all make the same amount – $174,000.

The problem with this approach, analysts say, is that instead of insulating judges from political influence, it holds them hostage to the lawmakers' own fear of political repercussions for granting themselves a pay raise.

The Beer v. US complaint says that in 1989, Congress established a system for judges to receive automatic annual salary adjustments. The adjustments were to be equal to adjustments granted to federal civil servants.

But Congress has blocked the adjustments for judges six times.

In 1997, a group of federal judges filed a class-action lawsuit, Williams v. United States, claiming a constitutional right to receive the cost-of-living adjustments. For Congress to deny the cost-of-living adjustments amounted to a diminution of judicial pay in violation of the compensation clause, they argued.

The federal judge hearing the case agreed, but an appeals-court panel threw the suit out. The appeals court ruled that because the judges hadn't actually received a paycheck at the higher, adjusted amount, Congress was still free to renege on its earlier pledge of future salary increases.

In November 2001, Congress responded to the Williams lawsuit by amending the existing law to prohibit automatic cost-of-living or other salary adjustments without specific year-to-year authorization by Congress.

A few months later, the judges asked the Supreme Court to take up their case. The high court declined, leaving the appeals-court decision in place.

Three justices dissented from the high court's decision not to hear the Williams case. "I believe the judges have raised an important constitutional question, the answer to which at present is uncertain," Justice Stephen Breyer wrote in a dissent joined by Justices Antonin Scalia and Anthony Kennedy.

Previous

1 | 2