National Commission on the Public Service
Statement of Justice Stephen G. Breyer
July 15, 2002
Mr. Chairman, Members of the National Commission on the Public Service,
Although I appreciate your having invited the Chief Justice and me to testify today, I am not very happy to be here. The presence of the Chief Justice of the United States, and my own, suggest that something has gone seriously wrong with the judicial compensation system that the Constitution's Framers foresaw. That system, designed to help secure judicial independence, plays a key role in helping to ensure fair treatment for all Americans and to protect our basic liberties.
The Framers understood the need for judicial independence. Independent judges, as my colleague Justice Ginsburg recently put it, do not act on behalf of particular persons, parties, or communities. They serve no faction or constituency, and they must strive to do what is right in each individual case, even if the case in question should find the least popular person in America opposed by the most powerful government in the world. The Framers also understood that steady judicial compensation would help to secure that necessary independence. That is why, in the Declaration of Independence, they complained of an English king who had made Judges dependent on his Will alone for . . . the Amount and Payment of their Salaries. And it is why they wrote into the Constitution itself a guarantee that judges would receive a compensation that could not be diminished.
The Framers deliberately connected judicial compensation and judicial independence. They did so not to help the judges but to help the public. But inflation, combined with legislative inaction, has seriously undermined the compensation that they foresaw.
It is also difficult to be here because I am not a good advocate for my own cause. No one is. In principle, it should be up to the Bar, to the Press, to the Academy, to those who study Government, to explain to the public why the matter of judicial salaries is important to them. The public will inevitably discount a judge's own explanation of the need in light of the obvious self-interest.
I consequently find it anomalous, and I also find it difficult, to ask you and through you the President and Congress to act in this matter that affects my own pocket-book. Yet the Chief Justice and I do so because of the seriousness of the present circumstances.
The real pay of federal judges has diminished substantially in the past three decades. The gulf that separates judicial pay from compensation in the nonprofit sector, in academia, and in the private sector grows larger and larger. And the result, in my view, threatens irreparable harm both to the institution and to the public that it serves.
A few facts may help explain why I am not overstating. First, the real pay of federal judges has declined dramatically in the past several decades. (1) Between 1969 and 1999 real pay for federal trial court and appellate court judges has declined by about 25%; during the same period of time, the real pay of the average American worker increased by 12.4%. Since 1993 when Congress last comprehensively revised federal salary statutes, real judicial pay has declined by about 10%, while real pay in most other professions has increased by 5% to 15% or more. (2)
Second, the salaries of top executives in large non-profit organizations are now significantly higher than those of federal judges. (3) As you can see, the average non-profit CEO's salary as of three years ago was about 20% higher than that of a Supreme Court Justice and about 35% higher than that of a federal district judge.
And if this gap seems high, it is nothing compared to the chasm that has developed between salaries in legal academia and the salaries of judges. Back in 1969, when I was at Harvard, top professors were paid $28,000 and the Dean was paid $33,000, while district court judges were paid $40,000. (4) But now we see quite a different picture. Based on my informal survey of top law schools, senior law professors at those schools make around $250,000, and law school deans tend to make around $325,000. (5) Had the same relationship held, the district court judges would now be paid at about a $250,000 annual rate.
If the difference between judges' pay and pay for nonprofit executives can be described as a "gap," and if the difference between judges' pay and compensation in legal academia is properly described as a "chasm," then, as this chart shows, the difference between what judges make and what lawyers make in the private sector can only be described as the "Grand Canyon." (6) Indeed, by now we are all familiar with stories of law clerks who begin practice at major firms earning a higher salary (including bonuses) than the judges for whom they clerked.
Finally, for completeness, I have made a few foreign comparisons. As you can see, increases in judicial compensation in Canada and Great Britain have far exceeded the increases in the cost of living in those countries in recent years, while in the United States the opposite is true. (7) And if we compare the actual judicial salaries of those three countries, the United States finishes last. (8) We cannot hope to continue to have the best judicial system in the world--as the public has come to expect--if we do not compensate our judicial officers accordingly.
These figures, taken together, show that real federal judicial pay has significantly declined. And they show that judicial salaries are far lower than those earned elsewhere in the profession. But government service has never been highly compensated. And present judicial salaries, about $150,000 for a district judge, while disproportionately low within the legal profession, are nonetheless still higher than the salaries that most Americans receive. Why, one might ask, should judges be paid yet more?
I believe that the answer to this question has nothing to do with what judges might "deserve" or "merit." In this world, I can find no pay scale that measures an individual's "just desserts." Many American workers are paid far less than what they, in moral terms, might deserve. Rather, the answer to the question must have, and does have, everything to do with the nature of the institution and the value of a strong, well functioning, truly independent judicial system for all Americans.
Consider the decline in real judicial pay. To permit that kind of pay decrease - particularly when during the same period the pay of the average American has increased and when key costs, such as those of higher education, have skyrocketed--creates major financial insecurity among judges. As the Chief Justice has pointed out, it means resignations. It creates perceptibly unfair comparative pay scales within the judicial branch itself, as pay compression, along with local-cost allowances creates pay for some higher officers (judges) in some places that is lower than the pay for some lower officials (such as United States Attorneys, Federal Public Defenders, Circuit Executives, and Court Clerks). (9)
I wrote about that threat in the case of Williams v. United States. Williams focused on the severe limitations on outside earned income that Congress imposed on judges in 1989 and upon Congress's related promise to maintain judges' real salaries--a promise that soon was broken. (10) I argued that the Court should consider whether the breaking of that promise violated the Constitution's Compensation Clause.
Consider further the present gap between judicial salaries and non-profit or teaching salaries. That gap also threatens the institution. It diminishes the comparative attractiveness of judicial office to well-qualified lawyers outside the system. It increases the tendency towards promotion from within, with a consequent risk of bureaucratization. It increases the likelihood that those who seek and obtain judicial office will see that office as a temporary assignment, leaving it after a time for better-paid work in the private sector (as now occurs in other branches sometimes with better reason). In a word, it threatens all the institutional harms to which the Chief Justice has referred, and then some.
In pointing to these harms, I do not intend to suggest that a strong Judicial Branch of Government is any more important to the American public than a strong Executive Branch and a strong Legislative Branch. To the contrary, the roles those in other Branches play are at least as crucial as is ours. And the continuous cutting of the real salaries paid top officials in the other Branches threatens the strength of the institutions within those Branches, just as it threatens the judiciary.
In my own view, based upon my own experience in government, salary differences do matter; and continuous cuts in the salaries of those who lead an organization will over a period of time sap an institution's strength, lowering morale, injuring its reputation, diminishing its power to attract and to retain well-qualified workers. In this way the cuts contribute to diminished institutional performance, which in turn promotes public disenchantment, a lack of trust in a government less able to get the job done well, and a lack of interest in participating in the work of that government. (I believe it is relevant that only 3% of Harvard Law School's graduates now enter public service, compared to about 12% when I first started teaching there). (11)
Harm to the institution is, of course, harm to the public whom the institution seeks to serve. That is so whether the institution in question is the Forest Service, the FBI, the Congress of the United States or the Federal Judiciary. It is that harm that concerns me. I have spoken of this harm in respect to the judiciary because that is the institution I know best. But as we all know, if the Forest Service is not paid properly, in the long run the wilderness will suffer. If the FBI is not paid properly, in the long run that institution will find it more difficult effectively to combat crime and terrorism. And similarly, without adequate compensation--if judges' pay continues to erode--we cannot expect the federal judicial system to function independently and effectively, as the Constitution's Framers intended.
Again, I appreciate the opportunity to address this issue. And I am happy to answer any questions. Thank you.
1. See Chart One, Appendix A.
2. See Chart Two, Appendix A.
3. See Chart Three, Appendix A.
4. See Chart Four, Appendix A.
5. See Chart Five, Appendix A.
6. See Chart Six, Appendix A.
7. See Chart Seven, Appendix A.
8. See Chart Seven, Appendix A.
9. Submission of the Judicial Conference of the United States to the National Commission on Public Service, p. 4 (June 14, 2002).
10. Appendix B.
11. Personal Communication from Daniel Coquillette (J. Donald Monan University Professor, Boston College Law School; Visiting Professor of Law, Harvard Law School).