October 6, 2012, 7:18 AM
Judges Rule for Judges on Pay
By Brent Kendall
Refereeing a remarkable dispute between the judiciary and
Congress, a divided federal appeals court ruled
late Friday afternoon that lawmakers violated the
Constitution by blocking cost-of-living salary increases for
The U.S. Court of Appeals for the Federal Circuit
acknowledged the case presented it with a direct conflict of
interest. Judges aren’t supposed to participate in cases in
which they have a personal or financial interest, but here, the
appeals court said it had no choice. If every federal judge were
disqualified, there would be no tribunal to hear the plaintiffs’
claims, it said.
At issue were claims by six current and former federal
judges who said Congress violated the Constitution’s
Compensation Clause when it blocked promised salary adjustments
for several years.
The clause says judges’ pay “shall not be diminished during
their continuance in office.” Intersecting with that provision
was a 1989 federal law that promised judges automatic
cost-of-living adjustments in concert with other federal
The appeals court sided with the judges in a 10-2 ruling ,
saying that Congress can’t now back away from that promise.
“All sitting federal judges are entitled to expect that
their real salary will not diminish due to inflation or the
action or inaction of the other branches of government,” Chief
Judge Randall Rader wrote for the court. “The judicial officer
should enjoy the freedom to render decisions — sometimes
unpopular decisions — without fear that his or her livelihood
will be subject to political forces or reprisal from other
branches of government.”
The appeals court said the case implicated basic
separation-of-powers principles. “The judiciary, weakest of the
three branches of government, must protect its independence,”
Judge Rader wrote.
The two dissenters, Judges Timothy Dyk and William Bryson
said the court’s ruling “has much to recommend it as a matter of
justice to the nation’s underpaid Article III judges,” but
nevertheless was incorrect. The dissenters said the plaintiff
judges should lose under the precedent set by a 1980
Supreme Court ruling that said Congress could block or
reduce future judicial salary increases so long as they hadn’t
already taken effect.
“The Supreme Court may distinguish its own opinions by
limiting them to their facts or choose to overrule them, but
that is not an option for this court,” the dissenters wrote.
The state of judicial pay has been a thorny issue for
federal judges for several years. Chief Justice John Roberts
famously said in a
2006 year-end report that the failure to raise judicial
pay had “reached the level of a constitutional crisis.”
* * *
Comment by Ron Branson:
The above is so full of holes, I can hardly restrain myself
from exposure here.
The first issue is the argument on the Separation of Powers
Doctrine. I often hear this quoted as to why one branch of
government cannot interfere with another branch. This is
totally a reverse of the proper application of the doctrine.
I was told by the California Legislature that due to the
Separation of Powers Doctrine, they could not get involved
in a matter that involved judicial corruption. Hogwash.
Our Founding Fathers created the three branches of
government exactly for the purpose that each be a check upon
the another. The danger arises when the three branches act
in unison with one another against the People, which is
precisely what has happened today.
They created an
bulky inefficient government. This is why they created a
divided Congress of the lower House and an upper House.
Each side of Congress was is to independently determine one
another 's proposition before it can became law. Then it
goes to the President to consider a veto. Can you imagine if
the President said, "I can't get involved in laws, because
that is a Legislative function?" No, you can't. The
President must determine independently whether he will veto
the laws passed by both Houses of Congress. The
job of the President is to interfere with the Legislative
process, if necessary.
Likewise, it is the job of the Legislative Branch to step in
and interfere as a check and balance against the Judicial
Branch. The Judiciary admits to a conflict of interest,
being it involves their own aggrandizement, and rightly so.
It is for this very reason that salary increases of judges
must be left to the Legislature.
Personally, were I involved in the writing of the original
Constitution, I would have contended for a specific defined
dollar amount to be paid in salary to each member in
Congress, and to the Judiciary, and the President. This
would certainly prevent the fooling around with our defined
coined money of account. For instance, let's say,
Congressmen would be paid $1,500 per year in 1787 currency.
Now if Congress inflated the money of account, they would
cut their salaries, because after two hundred years of
inflation they would still only receive only $1,500 per year
salary. And so with the Judiciary.
This measure would prevent the Judges from ruling in favor
of a fractional banking system, as they would be cutting
their own throat. I once saw a cartoon of a lady in a
bookstore looking up at a book entitled, "Understanding
Inflation." It was on sale for only $200 dollars while
The next issue I would like to take on is the argument that
depriving judges of salary increases is a violation of the
U.S. Constitution in decreasing their pay. It is true that
federal judges are not to have their pay decreased during
their time of service. The very reason was to prevent the
Legislature punishing the federal judges for their unpopular
decisions. So if we follow this reasoning, the judges are
arguing that "inflation" is a type of judicial punishment
for their services.
But the principle of "inflation" is not only
non-constitutional, but also unconstitutional, as it changes
a standard set forth in the 1792 U.S. Coinage Act passed by
Congress, and such inflation can only the unconstitutional
rulings of the federal judiciary.
Who, beyond federal judges, can be blamed for not enforcing
the supreme law of the land? This reminds me of the Menendez
Brothers Case in which the two Menendez brothers murdered
their parents with a shotgun, and then claimed that they
were entitled by law to financial benefits because they were
now orphans. Federal judges cannot be heard to complain
about their demise which they directly participated in
What's more, the federal judiciary here is directly defying
their own 1980 U.S. Supreme Court determination that says
"Congress could block or reduce future judicial salary
increases so long as they hadn't taken effect."
Here we have the federal judiciary defying its own rulings
for obvious selfish reasons, their own pay. But salary
increases are a Legislative function, not a judicial
function. The Separation of Powers Doctrine to which these
judges appeal forbids their passing laws period. This goes
certainly for conflictatory laws that give themselves a
If indeed judicial salary increases has created a national
constitutional crisis, as indicated by Chief Justice John
Roberts, it is a national crisis of these judges own making.
They made their bed, let them sleep in it. Besides, I
frankly find it hard to come to tears over their $200,000
received annually. Most of us are bankrupt and out of work,
and we would love to receive only one-tenth of the salaries
of these judges.
-- Ron Branson