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Three justices would have heard judicial salary case.

In an unusual dissent to the denial of a petition for certiorari, three U.S. Supreme Court justices said they would have heard an appeal questioning Congress's authority to restrict cost of living raises for federal judges.

Justice Breyer, in a dissent in which Justices Scalia and Kennedy joined, said he would have granted the writ of certiorari in Williams v. United States, 122 S.Ct. 1221 (2002), to determine if Congress had violated the Ethics Reform Act of 1989. That act strictly limits the type of outside income that federal judges may earn, but it also sets up a mechanism to assure that "real" compensation for judges stays at a nearly constant level. Judicial compensation would be kept at that level through a formula for cost-of-living pay increases, which would take effect whenever there was a similar adjustment in the salaries of most federal civil servants.

The pay adjustments under the Ethics Act take place annually and automatically unless the President determines that a national emergency or serious economic conditions affecting the general public should trump them. In 1995, 1996, 1997 and 1999, salary adjustments for the rest of federal employees took effect, but not so for federal judges. The raises for those years was overridden by Congressional appropriations legislation providing that salaries for members of Congress, certain high-level executive branch employees and federal judges would not be adjusted.

In 1997, U.S. District Court Judge Spencer Williams, along with other judges who were sitting on the federal bench when the Ethics Act took effect, sued the United States, alleging that the Congressional "blocking laws" diminished their compensation in violation of the Constitution's compensation clause in Section 1 of Article III, which provides that federal judges' compensation shall not be diminished during their terms in office. The district court ruled in favor of the judges, but the Court of Appeals for the Federal Circuit, in a split decision, reversed. 240 F.3d 1019 (2001).

Petitioning for a writ of certiorari, the judges argued that the U.S. Founding Fathers deliberately mentioned federal judges in the compensation clause because they wanted to establish an independent judiciary that would not have to worry about a drop in salary from legislative acts. They also argued that the Congressional "blocking bills" in effect diminished judges' salaries and were unconstitutional because they reneged on the promises of the Ethics Act, which specifically sought to protect judicial salaries at a base level. As the American Bar Association, Federal Bar Association and American College of Trial Lawyers pointed out in supporting the judges' position, the "real salaries" of district court judges has declined about 25 percent in the past several decades.

In Justice Breyer's dissent, he viewed the judges as raising difficult constitutional questions that warranted the Supreme Court's review. The appeal, he wrote, was about a Congressional decision in 1989 to protect federal judges against undue diminishment in real pay by providing for cost-of-living adjustments to guarantee their salaries would not fall too far behind inflation. Through the "blocking bills," he went on, Congress had cut its own real salaries just as much as it had that those of federal judges. The compensation clause, which the judges asserted was at issue, speaks of protecting judicial salaries from diminishment, not about protecting Congressional salaries, he added. The constitutional question, as Justice Breyer framed it, was whether the compensation clause permits a Congress to renege on a commitment by a prior Congress to maintain real judicial salaries. He would have granted certiorari to decide that issue.

"Prudential considerations" may have had some play in the court's denial of the certiorari petition, Justice Breyer acknowledged. "For one thing, we face the serious embarrassment of deciding a matter that would directly affect our own pocketbooks; and, in doing so, we may risk the public's high opinion of the Court insofar as that opinion rests upon a belief its judges are not self-interested." Just because it is a somewhat touchy issue, does not mean the Supreme Court should turn a deaf ear, he stated. "Whenever a court considers a matter where public sentiment is strong, it risks public alienation."
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Title Annotation:US Supreme Court
Author:Sanders, Carol McHugh
Publication:Defense Counsel Journal
Geographic Code:1USA
Date:Jul 1, 2002
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