April 10, 2009
Eight federal judges are suing the US government for back pay in a potential landmark case that raises fundamental questions about how the Founding Fathers sought to protect an independent judiciary.
Five US district judges and three appeals-court judges charge in their suit that Congress reneged on a pledge to provide America’s jurists with automatic cost-of-living increases. Congress has excluded judges from receiving inflation adjustments in six of the past 16 years.
The judges say the action violates the Constitution’s compensation clause, which bars Congress from reducing a judge’s pay.
The lawsuit, Beer v. US, is being litigated in the Court of Federal Claims in Washington. Government lawyers filed their response this week. In it, the government says the same issue was fully litigated in a 1997 case called Williams v. US, and the judges who filed that complaint lost.
What makes Beer v. US particularly significant is that the plaintiffs are federal judges claiming a constitutional violation.
The case is also worth watching because the ruling judges themselves will have a direct financial interest in the outcome. The law authorizes judges to hear such cases when there is no other provision for appointment of a disinterested adjudicator.
The complaint seems aimed at the US Supreme Court, where seven of the nine justices have made public statements urging congressional action on judicial compensation.
Compensation has long been a sore point among judges in the US.
Chief Justice John Roberts has repeatedly asked Congress to boost salaries.
Currently, district judges earn $174,000 a year. Federal appeals-court judges are paid $184,500 a year, while associate justices at the Supreme Court make $213,900. The chief justice is paid $223,500.
Supporters of pay increases say flat or declining judicial compensation threatens the independence of the judiciary and the quality of American justice. The best legal minds, they say, will opt for million-dollar careers in the private sector.
Sixty-three judges have left the federal bench since 2000, according to James Duff, director of the Administrative Office of the US Courts. Eighteen of them left before qualifying to receive any pension or annuity benefits, 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.”
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 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.