The Judicial Compensation Clause

The Judges, both of the supreme and inferior Courts . . . shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

—Chief Judge Jennifer Walker Elrod, Jack Buckley DiSorbo, & J. Andrew Mackenzie

Introduction

“Next to permanency in office,” wrote Alexander Hamilton in Federalist No. 78, “nothing can contribute more to the independence of the judges than a fixed provision for their support.” Concern over judicial compensation was a catalyst of the American Revolution and a rare point of consensus in the nation’s early political debates, including the debate over the adoption of the Constitution. It continues to be a jealously guarded feature of the federal judiciary, at times raising unexpectedly thorny questions about indirect effects on the real wages of judicial officers.

The federal judiciary has resolved several questions concerning the Judicial Compensation Clause. Congress cannot diminish an incumbent judge’s salary but can prospectively reduce the salaries of future judges. Congress may lawfully repeal a future increase in judicial compensation but cannot repeal a definite commitment to automatic cost-of-living adjustments. Early cases held that a federal judge’s salary is immune from federal taxation, but those decisions have been overturned. The rising cost of living poses an ongoing concern about the significant compensation gap between judicial officers and private practitioners, which Chief Justice John Roberts has described as a “constitutional crisis” for the strength of the federal judiciary.

History Before 1787

One of the “long train of abuses and usurpations”¹ that drove the American colonists to revolt was the issue of who paid colonial judges. In response to the Boston Tea Party, Parliament transferred the power to pay the salaries of Massachusetts’ colonial courts from the local legislative body to King George III’s royal governor, thus rendering those judges “dependent on [the king’s] Will alone, for the tenure of their offices, and the amount and payment of their salaries.”² This transfer of power was effected by the Massachusetts Government Act of 1774, one of the four edicts known collectively as the Intolerable Acts that were designed to break the rebellious spirit of Massachusetts and punish the “dangerous commotions and insurrections” that had been “fomented and raised in the town of Boston.”³

Needless to say, the Intolerable Acts backfired. The colonists considered the Massachusetts Government Act to be a transparent attack on judicial independence and on their rights as Englishmen. The Declaration of Independence would charge that the Act was one more reason to conclude that the design of the British government was to “reduce [the colonies] under absolute Despotism.”⁴

When it came time to organize the governments of the independent United States, salary and tenure protections were a staple concern. John Adams’s April 1776 Thoughts on Government explained that judges “should not be dependant upon any man or body of men.”⁵ Rather, they “should hold estates for life in their offices, or in other words their commissions should be during good behaviour, and their salaries ascertained and established by law.”

Early state constitutions provided such protections. Virginia’s 1776 constitution declared that “[Judicial] officers shall have fixed and adequate salaries.”⁶ Maryland’s 1776 constitution similarly stated that “all Judges . . . shall hold their commissions during good behavior, removable only for misbehavior, on conviction in a Court of law.”⁷

Constitutional Convention

The records of the Federal Convention reflect relative unanimity on the notion that judges’ salaries ought to be secured in some manner. The only disagreement came when Gouverneur Morris of Pennsylvania sought to remove language from an early draft that would have prohibited increases in judicial salaries as well as decreases. Morris reasoned that “the Legislature ought to be at liberty to increase salaries as circumstances might require[.]”⁸ The edit was seconded by Benjamin Franklin of Pennsylvania, who predicted that “Money may not only become plentier, but the business of the department may increase as the Country becomes more populous.”⁹

James Madison of Virginia strenuously disagreed with the proposed change. He countered 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 towards the latter.” The resulting temptation to render rulings favorable to the legislature “ought not to [be] suffered, if it can be prevented.”¹⁰

Nevertheless, recognizing that salaries might need to increase to account for changes in the cost of living and judicial workload, Madison proposed that “[t]he variations in the value of money, may be guarded agst. by taking for a standard wheat or some other thing of permanent value.”¹¹ Madison made the same proposal for congressional salaries. (See Essay No. 30.) Charles Pinckney of South Carolina aired a different concern: “The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the U.S. can allow in the first instance.”¹² Pinckney’s objection foreshadowed future debates. Ultimately, Morris’s motion carried by a vote of 6 to 2.¹³

Ratification Debates

During the ratification debates, consensus over the idea of fixed salaries for judges largely continued. One outlier was the Anti-Federalist Federal Farmer, who worried that the legislature’s inability to decrease judicial salaries might lead to unintended wealth as a result of rising and falling prices.¹⁴ For the most part, however, even Anti-Federalists who were critical of the federal judiciary did not object to the Judicial Compensation Clause. It was the fact that judicial decisions, rather than judicial tenure and salaries, would be insulated from legislative review that caused Brutus to fear that the proposed Constitution would create a judiciary “independent of the people, of the legislature, and of every power under heaven.”¹⁵ Brutus did not object to giving judges good-behavior tenure and fixed salaries as long as their decisions could be overturned if they conflicted with the legislature’s will.¹⁶

Prominent jurists subsequently cited the importance of guaranteed salaries for judges. Justice James Wilson stated that judges should be “completely independent” in “their salaries, and in their offices.”¹⁷ James Kent, former Chief Justice of the New York Supreme Court, wrote that “permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence.”¹⁸ Kent also cited the need to “secure a succession of learned men on the bench” by persuading the leaders of the legal profession “to quit the lucrative pursuits of private business for the important station” as a reason to support fixed salaries for judges.¹⁹ In 1829, Chief Justice John Marshall stated that a judge “should be rendered perfectly and completely independent, with nothing to influence or countroul him but God and his conscience.”²⁰

Judicial Precedent

The federal courts have decided several cases arising under the Judicial Compensation Clause. First, while Congress cannot diminish an incumbent judge’s salary, it can prospectively reduce the salaries of future judges. This principle was established during the early Republic. In 1801, Congress provided that federal justices of the peace in the District of Columbia would receive certain fees.²¹ But Congress subsequently repealed those fees. Judge Benjamin More, a Jefferson appointee, was denied a fee of twelve-and-a-half cents (roughly $3.50 today.) The dispute gave rise to litigation, and the circuit court ruled for More. The court held that Congress could repeal the fee statute, but the repeal had to be prospective—i.e., it could not apply to judges who were already on the bench.²² The appeal before the Supreme Court was dismissed for lack of jurisdiction.

Second, the courts have recognized that the Judicial Compensation Clause does not protect compensation for judgeships “created by virtue of . . . Article I.”²³ This principle logically extends to all non-Article III magistrate judges, bankruptcy judges, administrative law judges, District of Columbia Superior Court judges, Tax Court judges, and so on. The salaries of such federal officers may be diminished.²⁴

Third, it was long argued that the Judicial Compensation Clause made federal judges immune from taxation. Justice Stephen Field suggested such an immunity in his concurrence in Pollock v. Farmers’ Loan & Trust Co. (1895).²⁵ This noteworthy case held that a federal income tax was unconstitutional, precipitating ratification of the Sixteenth Amendment. Evans v. Gore (1920) held that a federal judge’s compensation was indeed immune from federal taxes,²⁶ but over time, the Court eroded that general immunity.²⁷ Eight decades later, Evans was overturned in United States v. Hatter (2001).²⁸ Justice Stephen Breyer’s majority opinion observed that “a nondiscriminatory tax . . . upon judges” was constitutional “whether those judges were appointed before or after the tax law in question was enacted or took effect.”²⁹ In dissent, Justice Clarence Thomas wrote that Evans was correct.³⁰

Fourth, the courts have considered the relationship between the Judicial Compensation Clause and cost-of-living adjustments. United States v. Will (1980) held that Congress may lawfully repeal a specific future increase before it goes into effect.³¹ But in Beer v. United States (2012), the en banc Federal Circuit held that Congress cannot repeal a “definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”³² The Supreme Court denied review in Beer.³³

Ongoing Issues

In Federalist No. 79, Hamilton recognized that a judge’s real wages may decrease in light of inflation: “It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible.” But it would be up to Congress, with its power of the purse, to increase judicial compensation over time. The First Congress set the salary for a federal judge at $3,500 (roughly $122,000 today), but Congress let that amount stagnate. In 1812, Justice Joseph Story expressed reservations about accepting his Supreme Court nomination because Congress had not increased judicial salaries in more than two decades.³⁴

The ongoing disparity between the compensation of judicial officers and private practitioners may create difficulties in recruiting and retaining talent.³⁵ In 2007, Chief Justice John Roberts wrote that the failure to raise judicial compensation “has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.”³⁶ It remains to be seen whether Congress will pass legislation to address these issues and, if so, whether such legislation would pose any constitutional questions.

1. Declaration of Independence, ¶ 2. ↩︎
2. Massachusetts Government Act of May 20, 1774. ↩︎
3. Boston Port Act of March 31, 1774. ↩︎
4. Declaration of Independence, ¶ 2. ↩︎
5. 4 The Papers of John Adams 86–93 (Robert J. Taylor ed., 1979). ↩︎
6. Va. Const. of 1776. ↩︎
7. Md. Const. of 1776, art. 40, § xl. ↩︎
8. 2 Farrand’s 44. ↩︎
9. Id. at 44–45. ↩︎
10. Id. at 45. ↩︎
11. Id. ↩︎
12. Id. at 429–30. ↩︎
13. Id. at 45. ↩︎
14. Storing 2.8.188. ↩︎
15. Storing 2.9.189. ↩︎
16. Id. ↩︎
17. 1 Works of James Wilson 363 (J. Andrews ed., 1896). ↩︎
18. 1 James Kent, Commentaries on American Law 319 (10th ed. 1860). ↩︎
19. Id. ↩︎
20. Proceedings and Debates of the Virginia State Convention, of 1829–1830, at 616 (1830). ↩︎
21. An Act Concerning the District of Columbia, 6th Cong., 2d Sess., 2 Stat. 103 (1801). ↩︎
22. United States v. More, 7 U.S. (3 Cranch) 159, 160 n.2 (1805). ↩︎
23. Palmore v. United States, 411 U.S. 389, 393 (1973). ↩︎
24. Williams v. United States, 289 U.S. 553 (1933); Freytag v. Commissioner, 501 U.S. 868, 901–15 (1991) (Scalia, J., concurring in part and concurring in the judgment). ↩︎
25. 157 U.S. 429, 604 (1895) (Field, J., concurring). ↩︎
26. 253 U.S. 245, 264 (1920). ↩︎
27. Jonathan L. Entin, Getting What You Pay For: Judicial Compensation and Judicial Independence, 2011 Utah L. Rev. 25, 31–36 (2011). ↩︎
28. 532 U.S. 557 (2001). ↩︎
29. Id. at 571. ↩︎
30. Id. at 586–87 (Thomas, J., concurring in the judgment and dissenting in part). ↩︎
31. 449 U.S. 200, 224–26 (1980). ↩︎
32. 696 F.3d 1174, 1177 (Fed. Cir. 2012). ↩︎
33. United States v. Beer, 569 U.S. 947 (2013). ↩︎
34. Charles Warren, The Supreme Court in United States History 416 (rev. ed. 1926). ↩︎
35. Michael J. Frank, Judge Not, Lest Yee Be Judged Unworthy of a Pay Raise: An Examination of the Federal Judicial Salary “Crisis,” 87 Marq. L. Rev. 55, 60–67 (2003); Jonathan L. Entin & Erik M. Jensen, Taxation, Compensation, and Judicial Independence, 56 Case W. Rsrv. L. Rev. 965, 1001–09 (2006). ↩︎
36. John G. Roberts, 2006 Year-End Report on the Federal Judiciary 1 (2006), https://perma.cc/9WCY-6JVS. ↩︎