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As many readers of this blog know, it is often used as an opportunity for me to juxtapose two different stories or thoughts that I read in two different places. Thus this post on judicial pay raises.

As you may have seen, a trial court judge in New York State has ordered
the state legislature to raise the pay of NY judges. Like the federal judges, the state’s judges’ salaries are linked to the legislators’ salaries. Because legislators don’t like to vote themselves pay raises because it is politically unpopular, judges don’t get raises either. So the judges sued, and another judge, who stands to get such a pay raise, ruled in their favor. Said the failure to raise their pay in line with inflation violated the constitutional principle of an independent judiciary. If the Legislature does as it was ordered, it could cost upwards of $600,000,000. (I note further that the New York Times story on the decision did not include one single critical quote).

Meanwhile, I have just finished reading Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers, by former NY Law School Dean James F. Simon. I enjoyed the 286-page volume, particularly the second half. At one point in the story, Prof. Simon provides an interesting historical tidbit:

“The Chief Justice had both personal and constitutional reasons to object to a second [Secretary of Treasury Salmon] Chase policy, a tax on the salaries of justices of the Supreme Court. Congress had passed legislation that provided for a tax of 3 percent ont he salaries of all officers of the federal government, and Chase had interpreted the measure to include members of the federal judiciary. Taney was certain that Chase’s interpretation was in direct violation of a provision of the Constitution, which guaranteed that the salaries of federal judges would not be reduced during their terms of office. …
“Two weeks later, having received no response from Chase, Taney wrote the Treasury Secretary a long letter challenging his action. The intention of the Constitution was to provide for an independent judiciary, he noted, and that independence was comprised by giving Congress the power to reduce judicial salaries. He felt obligated to make his objections known even thought he issue could not be decided by the Supreme Court, since the justices had an obvious economic interest in the question….
“Chase ignored Taney’s protest, as well as the Chief Justice’s request that his letter be placed in the public record at the Treasury Department. Taney then made his letter a part of the public record at the Supreme Court.” (261-62).

If only the judges of New York State also respected the obvious conflict of interest… I understand that judges want a pay raise - it’s a pretty natural human feeling. But to resort to the judiciary to force such an action, and then further to find refuge in the vague generalities of “judicial independence,” is not the way to go.

• Remember when he was lampooned? - September 4th, 2008
• The Media has it both ways - September 3rd, 2008
• New MULS Law faculty blog - September 2nd, 2008
• Concluding Convention Thoughts - September 1st, 2008
• Another Nixon Observation - August 30th, 2008