John Roberts and the "constitutional crisis" of an underpaid judiciary.

A subject I considered too boring to write about is the Chief Justice saying -- in his year-end report (PDF) -- that federal judges should be paid more. I think this issue comes up every year.

So I was surprised to see what looked like a hundred messages on the subject on the Conlawrpof email list talking about it. And now Dahlia Lithwick has this piece in Slate, taking John Roberts to task for what she thinks is his overstated language :

In his eight-page report, the chief focuses, with charts and graphs and his trademark folksy good nature, on a single issue: He and his colleagues want a raise. He starts off with a cute anecdote and warms up the crowd with some Rose Bowl references. It all looks pretty promising. Until he goes off the rails completely with some dubious analysis and wraps it all up in claims of a "constitutional crisis."...

The chief may actually be right on the merits, but his tone couldn't be more off-putting.... Nobody wants to hear about the smattering of judges who flee the federal bench because their six-figure salaries are too low....

But Roberts' worst misstep comes with the words constitutional crisis—words known to have a distinct legal meaning....

This total lack of savvy from a man who is usually pitch perfect in his dealings with both the Congress and the American public is surprising. Clearly he's upset and frustrated about the state of judicial pay, and he is attempting to advocate for his colleagues in the strongest, most dramatic terms. But he, more than most, should know that the words constitutional crisis start to lose their meaning when they are deployed in the interest of judicial pay hikes. And that the words independent judiciary—which have been stretched of late to include everything from judicial immunity from popular criticism to freedom from physical attacks—similarly begin to ring hollow when they are used to simply mean "underpaid jurists."

My first thought was: Well, he got everyone's attention for once on this recurrent, tedious issue.

He got me to go read the report. Let's look at the argument. Federal judges used to be paid significantly more than law professors at top schools. Now, it's more like half. Sure, it's still a great job, but the question is who will take it under these circumstances. Here's Roberts:

Our judiciary will not properly serve its constitutional role if it is restricted to (1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase. Do not get me wrong–there are very good judges in both of those categories. But a judiciary drawn more and more from only those categories would not be the sort of judiciary on which we have historically depended to protect the rule of law in this country.

There is a much more brutal point that he does not make. So I will. The job means different things to different people. A power-loving ideologue would do the job for nothing. Plenty of folks would pay large sums to have the job if it were for sale. The point is, you need normal, well-balanced people to handle the responsibilities of judging, so you need to offer appropriate compensation so that normal, well-balanced people will decide to accept the work.

With the pay this far out of proportion to the comparable job of law professor, the judiciary is undermined. The federal judge's salary is, along with life tenure, one of the two safeguards for judiciary independence provided in the Constitution:

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

The judges might have aggressively interpreted that provision to require constant adjustments in their salary to deal with inflation, but that has not happened. Still, the principle is clear: the constitutional plan is to protect the judges from political manipulation. Congress can't attack the judges by cutting their pay, but it technically has the power to do something quite similar by constraining their pay over a long period of time. This isn't a direct attack, and it doesn't even seem meant as an attack. But it has an effect, and Roberts is right to raise the alarm about it. "Constitutional crisis" is strong language, but Roberts is defending the independence of what the Constitution designs as a co-equal branch.