A judicial salary case? No, thanks.


Chief Justice John G. Roberts, Jr., is seen in Providence, R.I, on Feb. 12, 2008. (Stephan Savoia/AP)

Early on in his tenure, Chief Justice John G. Roberts Jr. banged the drum so loudly for better pay for federal judges that he got accused of hyperbole for calling the issue a “constitutional crisis.

He regularly pressed for more money for them in his annual state-of-the-judiciary reports, but his head must have begun to hurt from running into the brick wall across the street.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. He gave up law school plans for a life in newspapers after taking a journalism class in college. It did not occur to him, as it apparently did to others, that he could do both. View Archive

“I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again — Congress must provide judicial compensation that keeps pace with inflation,” he wrote on the last day of 2008.

After that, in a time of budget cuts and sequestration, he pretty much didn’t bother to ask.

But higher salaries may be on the way for federal jurists, and Roberts didn’t have to do a thing. In fact, the money would come because Roberts and the rest of the Supreme Court last month decided to lie low.

The court said it would not review a 2012 decision by the full U.S. Court of Appeals for the Federal Circuit that said Congress had to pay judges the cost-of-living adjustments that it promised but failed to deliver in 1995, 1996, 1997, 1999, 2007 and 2010.

If the adjustments had been made, according to the Administrative Office of the U.S. Courts, a district judge’s salary would be $197,000 instead of the current $174,000 and a circuit judge would be making $209,100 instead of $184,500.

The issue makes all involved a bit uncomfortable: judges suing the government of which they are a part, the Justice Department defending Congress’s prerogative to withhold the pay bump even as the administration echoes a judge’s opinion that more money might be warranted “as a matter of justice to the nation’s underpaid . . . judges,” and, finally, judges passing judgment on a matter affecting their own finances.

The Supreme Court, as is its custom, did not give a reason for declining to review the decision in Beer v. United States , brought by U.S. District Judge Peter Beer of Louisiana, Senior Circuit Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit and four others.

The six judges filed the suit because “they just decided enough was enough,” said Christopher Landau, the Washington appellate lawyer who represents them.

And while only they stand to recover damages because of the ruling, a class-action suit that could include all federal judges, including members of the Supreme Court, is also working its way through the system.

As Solicitor General Donald B. Verrilli Jr. said in a petition urging the justices to overturn the ruling, the lower court’s decision “invites every sitting Article III judge (along with numerous other federal officials whose salaries are linked to judicial salaries) to sue the United States for damages, and many have already done so.”

Article III refers to the constitutional provision that establishes federal courts.

The case involves both a statute and a constitutional provision that is meant to ensure the independence of the judiciary. The compensation clause says that judges should “receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

The idea was to protect judges from having their salaries cut for making unpopular decisions.

But Congress decides how much judges should be paid. In 1989, it decided to restrict judges’ outside income and in return provide them with cost-of-living adjustments when other civil servants received them. But that didn’t happen in the years challenged in the Beer case.

The government claims that the decisions to withhold the adjustments do not violate the compensation clause, because no judge’s salary was reduced when he or she did not receive the cost-of-living increase.

The appeals court disagreed in a 10 to 2 vote. Congress is not required to increase a judge’s salary, the court said, but once it has made a promise to adjust salaries, as the 1989 law did, 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.”

The court noted that “judicial review of laws affecting judicial compensation is not done lightly.” Usually, judges must recuse themselves from a decision affecting their own finances. But the court noted that the “time-honored” Rule of Necessity provides that judges must get involved if the case otherwise would receive no hearing.

In effect, everyone involved has an equal conflict. And it should be noted that judges have ruled against judges in previous pay cases.

Still, it is an uncomfortable position for all, the new president of the Federal Judges Association, Circuit Judge M. Margaret McKeown of San Diego, indicated in an interview. Pauses between question and answer were long enough that one would be forgiven for thinking that the line had gone dead.

“I think what I can say is that it’s important for sitting judges that they have the ability to recoup what’s entitled to them by the Constitution and statute,” McKeown said, adding that she hopes the public realizes the suits are not about pay raises but simply increases prompted by inflation.

Landau points out that the cases are far from over. A judge is still considering the class-action case, Barker v. United States. And the Beer case has gone back to the Court of Federal Claims, where a judge is trying to determine the amount of damages owed the six judges.

From there, additional trips to the appeals court are possible, and the government could again try to interest the Supreme Court in reviewing the issue.

As Landau said, it is one thing to win the case, but “it’s another thing to get the money.”

For previous High Court columns, go to washingtonpost.com/fedpage.

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