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.

Article III, Section 1

The Judicial Compensation Clause of Article III, Section 1, Clause 1, would appear to be the dream of a textualist interpretation. The clause clearly and unambiguously states that the compensation of federal judges cannot be diminished during their service. Yet this clause has produced some of the most direct confrontations between the judicial and legislative branches.

The Judicial Compensation Clause is literally and conceptually tied to the Good Behavior Clause. (See Article III, Section 1.) The guarantee of life tenure would only afford judges independence if they could not be made dependent through their salaries and benefits. This was an issue of particular interest to the Framers because the compensation of colonial judges had been a heated point of contention with the Crown.

The necessity of increases in judicial compensation was the subject of division during the Constitutional Convention. James Madison believed that allowing increases during a judge's service would create a dependence on the legislative branch. He wanted the Judicial Compensation Clause to read "no increase or diminution shall be made" to a judge's salary. On July 18, 1787, the issue came to a head when delegates argued for the prohibition on increases to be struck from the clause. Gouverneur Morris insisted that Congress should be given the ability to raise salaries "as circumstances might require." Other Framers, such as Benjamin Franklin, agreed with Morris, for the Framers had had intimate experience with the effects of inflation during and after the Revolution. Madison lost, and the Framers removed the language banning judicial salary increases. Unlike the President, whose salary under Article II, Section 1, Clause 7, could neither be decreased nor increased, judges had lifetime appointments and would have grievously suffered from inflation. Thus, it was resolved that Congress could not diminish judicial salaries, but could increase them.

Given the clarity of the language on any direct diminishment of judicial salaries, most of the controversy under this clause concerns forms of indirect or collateral diminishment. In 2001, for example, Justice Antonin Scalia argued in his opinion concurring in part and dissenting in part in United States v. Hatter (2001) that the repeal of an exemption of judges from Medicare taxes violated the Judicial Compensation Clause. In that case the majority held that the Judicial Compensation Clause did not forbid Congress from applying a "generally applicable, nondiscriminatory tax" to the salaries of federal judges, whether or not they were appointed before enactment of the tax. However, the Court said, the Judicial Compensation Clause did prevent the government from collecting Social Security taxes, but not Medicare taxes, from federal judges who held office before Congress extended those taxes to federal employees. The Court also concluded that the Judicial Compensation Clause violation, with respect to Social Security taxes, was not cured by subsequent pay increases for federal judges in amounts greater than newly imposed Social Security taxes. In 2002, in Williams v. United States, judges challenged the denial of annual cost-of-living adjustments (COLAs) for judicial salaries. The Ethics Reform Act of 1989 protected federal judges against reductions in their compensation due to inflation. However, in 1995, 1996, and 1997, Congress acted to block these salary adjustments for federal judges. A district court judge and three Supreme Court Justices found considerable merit in the arguments of the judges challenging Congress. However, the Court declined to review the case by one vote and let stand an appellate-court opinion that denied the challenge.

There is no question that the Framers were concerned about collateral reductions. Although not known as COLAs in the 1700s, the concept of inflation adjustment was not unfamiliar to the Framers. For example, Alexander Hamilton specifically addressed the effect of "fluctuations in the value of money" on judicial salaries. However, in the language of the Constitution such adjustments were to be left to the discretion of Congress.

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Jonathan Turley
J.B. and Maurice C. Shapiro Professor of Public Interest Law
Director, Environmental Law Advocacy Center
Executive Director, Project for Older Prisoners
The George Washington University Law School