O Mighty Crisis

The “constitutional collapse” over judicial pay.

Chief Justice John Roberts

I have been accused by readers of being far too fond of the new chief justice. Several of my colleagues have broken into song when they see me—a little ditty linking me to the chief with a chorus that ends, “k-i-s-s-i-n-g.” And while I acknowledge that my regard for John Roberts’ intellect and charm is only enhanced by his cheery eyes and sense of humor, I don’t believe I have overstated the chief’s gifts. John Roberts is, in an era of ugly partisanship, a uniter.

Who else could get the National Review Online’s Matthew Franck to agree with the University of Texas law school’s Sanford Levinson? Who else could lead Doug Powers to agreement with the folks over at Think Progress and the Wall Street Journal’s Jess Bravin? Wow. Ten out of 10 pundits polled believe that the chief justice’s 2006 year-end report (released to coincide with the ball-drop) was offensive, outrageous, and appalling.

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.”

I won’t delve here into the merits of Roberts’ numerical analysis. Unlike Franck, I think federal judges are due for a pay raise, and I disagree that Article III judges should not “enjoy the fruits of an economic engine for which they provide none of the fuel.” But Franck, Scott Gerber, and Bravin all suggest in different and compelling ways that Roberts’ comparison between the salaries of federal judges, Harvard professors, and partners in the nations’ top firms is inapposite. Comparing judicial salaries to the salaries paid by firms like Roberts’ former employer Hogan & Hartson, or to the $200,000 signing bonuses such firms pay former Supreme Court clerks/rock stars, is like comparing judicial salaries to those at Nightline or the NBA. Sure, some of the very highest-paid lawyers in America can command such salaries. But that is not the only, or even most relevant, comparison for judicial salaries. Judicial pay is tied to congressional pay, and the chief justice doesn’t explain in his report why judges’ pay should be higher.

The chief may actually be right on the merits, but his tone couldn’t be more off-putting. It’s not just the comparisons to Harvard Law School and fancy firms that tend to make even his fondest critics see red. Nobody wants to hear about the smattering of judges who flee the federal bench because their six-figure salaries are too low. And let’s be honest about the perks here. As Bravin puts it, it’s hard to weep when your hear that “judges, who suffer from lifetime tenure, unsurpassed benefits, and the closest approximation to the status of nobility bestowed by the American republic, are being ground into poverty by the taxpayers’ parsimony.”

But Roberts’ worst misstep comes with the words constitutional crisis—words known to have a distinct legal meaning. The suggestion that judges today are of a lower quality or are more out of touch than their colleagues from prior decades is bad form. The suggestion that they lack judicial independence as a result of their low pay is an overstatement. But the words constitutional crisis are so imprecise as to be shocking. Perhaps the chief believes he can fling the term around casually, since he’s sort of in charge of the Constitution. But the backlash in pundit-land suggests he’s done himself no favors.

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.”