Thoughts On An Aging Judiciary

A few years ago, Chief Justice John Roberts railed against what he considered the greatest constitutional crisis facing the judiciary.  When one thinks about constitutional crises facing the judiciary, several things come to mind, including but not limited to the following: (1) an overreaching Congress that tries to shut the judiciary out its traditional oversight duties; (2) an Executive Branch that does not heed judicial decisions and defies the judiciary at every turn; (3) state governments that do not follow federal judicial orders; (4) random impeachments of federal judges for political rather than judicial reasons; (4) an American public that rises up in protest against the judiciary (spurred on by politicians with dubious motives) thereby depriving the courts of the legitimacy they need to survive; (5) rising vacancies on the federal bench due to Senate filibusters combined with an increasing caseload.

What the Chief Justice was referring to though was an alleged judicial pay crisis; he believed that federal judges were not being paid enough.

A quick Constitutional lesson.  There are two main types of federal courts–Article I courts and Article III courts (there are also Article IV courts and may also theoretically be Article II courts, but that is a different post for a different time and not really important now.)  Article I courts are created by Congress through Article I of the Constitution.  Article III courts are created by Congress through Article III of the Constitution.  That does not help much, I know, but stick with me.  Here is the difference.  Article I is the section of the Constitution about Congress, and Article III is the section about the federal courts in general and the Supreme Court in particular.

Article I courts are usually specialized (e.g. bankruptcy courts, military courts, the U.S. Tax Court).  Congress has the freedom to deal with these courts as it wishes.  Judges’ terms are limited to a certain amount of time.  There is no life tenure, and the judges’ salaries may be reduced.  In cases of life, liberty, or property, the rights protected by due process, Article I court decisions may be appealed.

Article III courts are what we normally think of when we think of the federal judiciary: the District (trial) Courts, the Circuit Courts of Appeals, and of course, the Supreme Court (also the Court of International Trade.)  Article III courts are the final word on all cases involving life, liberty, and property.  The judges of Article III courts cannot be fired and Congress is constitutionally forbidden from decreasing their salaries.  The only way to remove these judges is through the impeachment process–and that is very rare, although it did just recently happen.  The reason for such strict protections is clear–if judges are not dependent on Congress for their salary nor their continued employment, then they are more free to be independent-minded.  Constitutional battles always happen in Article III courts, and Article III judges are the ones who face constitutional crises.

Thus endeth the constitutional law lesson.

I have zero sympathy for the Chief Justice’s “crisis”, and there are two reasons why.  Reason #1:  Federal judges are paid a tremendous amount of money–it’s a six figure salary, and Supreme Court justices (who make the most) are paid over $200,000 per year.  They also receive generous pensions after they step down.  What the federal judges are angry about, or were angry about before the Recession hit (they may still be, but I have not heard anything about it lately), was that they were being paid significantly less than firm lawyers, and many of them came from large firms.  Furthermore, the judges see their clerks get firm jobs that pay far more than the judges’ own salaries.

Reason #2:  I firmly believe that those who go into public service should be paid less, especially when the position is one that involves power, public policy, and lawmaking.  Money should be the sacrifice for power.  While one can argue that my belief limits elected office to the wealthy (and I am prepared to debate that), federal judges are selected not elected–and selected for their connections not their personal wealth.  While it is sad that judges cannot prevent their college bound children from taking out loans in order to attend private universities, why should their children have advantages that the butcher’s children or the steelworker’s children do not?  If judges cannot handle that sacrifice, then by all means they should go into private practice.

The Chief Justice and every other judge who speaks about this calls this theoretical exodus of federal judges a brain-drain of the judiciary (“our best and brightest won’t want to be judges”).  First, this is not true because while there have been some resignations, it is not nearly as widespread as the Chief Justice would have Congress believe.  Second, this reeks of elitism.  The federal judiciary is made up of a disproportionate number of graduates of the elite law schools.  Eight of the nine members of the current Supreme Court graduated from either Harvard Law School or Yale Law School (the one lone holdout, Ruth Bader Ginsburg, went to Harvard for two years but transferred to Columbia.)  Law is an extremely class/status conscious profession, and there is a belief that if you did not graduate near the top of your class from a top tier law school, you are basically worthless as a human being.

So no, I have no sympathy for the judges.  If they want to retire en masse, then fill their spots with people who would be grateful for both the jobs and the salaries.   There is no lack of applicants.

There is actually a constitutional crisis in the judiciary, in fact there are two.  One of them I briefly mentioned already: the federal caseload keeps rising but so do the vacancies on the federal bench. (Ironically the Supreme Court docket is shrinking.)  Yet because of the dysfunctional mess that is the Senate, more federal judges are not being confirmed, which is very short-sighted.  The vast majority of cases that appear before the federal courts are not major constitutional/social issues, particularly at the trial level.  While The appellate courts are a little bit different (and the Supreme Court is very different), the Senate has completely muddled the process to the point and the federal courts have been severely hindered.

The other major problem is that the judiciary does not police itself very well.  Because impeachment is the sole way to remove an Article III judge from the federal bench, these are effectively lifetime positions.  They cannot be fired; they have no bosses.  Corruption is not generally a problem (it is exceedingly rare), but the federal bench as a whole is getting older and older.  Judges generally have huge egos (think lawyers squared), and find it difficult to admit their fallibility and their mortality.  And never will they admit possible senility.  This article in Slate, but written for ProPublica, is a great piece about how exactly the judiciary is facing this problem.  Supreme Court justices have a history of serving long past what should be an expiration date (e.g. Stephen Fields, Oliver Wendell Holmes, Thurgood Marshall), but the federal judiciary as a whole faces the same problem.

There are some judges who are trying hard to alleviate the situation, but there needs to be far more policing among the federal judiciary in order to prevent a real constitutional crisis, not the one that the judges imagine for themselves.

Music Playing While I Wrote This: Oscar Peterson Trio “Nuages”; Nina Simone “Since I Fell For You”; Science Friday podcast.


3 responses to “Thoughts On An Aging Judiciary

  1. An enlightening post. I have been perplexed at the administration’s interpretation of bankruptcy (law?) ever since the GM debacle/implosion which seemingly re-wrote the established pecking order for creditors. However, I have only read small bits and pieces here and there without going into too much depth on the subject. For the amount of necessary reading to stay on top of major legal developments and int’l soccer events, you must not sleep much.

  2. Tyler, there are actually two things in your comment, and they are not the same. The Bankruptcy Code was actually changed by Congress during the last administration (I think at least 6 or 7 years ago although it could be more) which made declaring bankruptcy much harder. Bankruptcy is a separate animal that I never learned about though, so I cannot actually speak with much authority. Everyone whom I’ve spoken to about the change though thinks it was a disaster.

    GM was a different animal because of how involved the government was. Once again, I’m not really an authority on this, but I think the government (specifically the Treasury Dept) basically backed GM and forced it to form a restructuring program. Not sure how much different that is from the established bankruptcy rules. I think the level of government involvement was unprecedented, but not actually a change of the law.

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