Judiciary Compensation

                The topic of discussion for this Constitution Monday comes from Article III, Section 1, Clause 1:  “The Judges … shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”  Known as the “Judicial Compensation Clause,” this provision assures the judges that they will receive compensation for their services and that their compensation will not be decreased if their decisions dissatisfy the administration in power.  This provision gives the judges the freedom to make the right decision without worrying about their compensation or tenure.

                “One of the most severe handicaps to the dispensing of evenhanded justice, from a judicial point of view, was the English custom of reducing the salaries of judges who displeased the king or his officers.  This provision was designed to prevent this from happening in the United States.”  (See W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, p. 591.)

                “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….

                “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…. [There have been problems with COLAs, etc. as recently as 2001 and 2002.]

                “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.”  (See Jonathan Turley in The Heritage Guide to the Constitution, pp. 238-239.)