The 6/13/2000 Memorandum to Chief Justice Rehnquist: "Compensation Increase for Justices—Response to Justice Thomas—Guidance Needed"

Some actual reporting by ProPublica.

I have been quite critical of the stories published by ProPublica over the past year. The articles are agenda-driven, and attempt to discredit the Supreme Court, and Justice Thomas in particular. However, ProPublica's latest piece has some newsworthy reveals.

In January 2000, Justice Thomas apparently told Representative Cliff Stearns, a Republican from Florida, that salaries for Supreme Court justices should be increased. Thomas also apparently said that one or more Justices would retire in the next year if salaries wre not increased. Stearns memorialized this conversation in a letter to Thomas:

Dear Justice Thomas: Just a note to let you know how much enjoyed visiting with you on the flight back from Jacksonville to Dulles. 1 intend to look into a bill to raise the salaries of members of The Supreme Court. As we agreed, it is worth a lot to American to have the constitution properly interpreted. We must have the proper incentives here, too.

In June 2000, Leonidas Ralph Mecham, the director of the Administrative Office of the United States Courts wrote a letter to Chief Justice Rehnquist about Thomas's exchange. (Mecham had served in that position since his appointment by Chief Justice Burger in 1985.) The letter begins:

It has been reported to the AO General Counsel's office that Justice Clarence Thomas at a reception talked to Representative Cliff Stearns (R-FL) and said that unless the compensation for Supreme Court justices is increased, "one or more justices will leave soon."

Thomas's request was announced at a meeting of the Federal Judges Association, and the news circulated in Washington. At the time, the 2000 election had not yet happened, but presumably this statement was made in anticipation of a Republican victory. Justice O'Connor was rumored to have wanted to step down during a Republican administration. Cue Bush v. Gore critics.

Mecham explained that Stearns was preparing legislation that would delink compensation for Supreme Court justices with compensation for lower court justices.

Apparently Stearns plans to offer an amendment to the Commerce, Justice, State, Judiciary appropriations bill to delink Supreme Court justices' pay from the pay of all other judges as well as from Congress and the Cabinet. He would create a pay commission devoted solely to Supreme Court justices which would study the pay needs of justices and report to Congress with the intent that Congress would then vote for a compensation increase solely for the justices.

For years, lower-court federal judges had complained that salaries had not been adjusted for inflation. Delinking the salaries could result in freezing compensation for inferior-court judges:

Is it wise, for example, to decouple justices both from the rest of the judiciary and Congress and then presumably have a congressional vote on a commission proposal devoted solely to increasing justices' compensation? Within the judiciary, that could run the risk of looking like a dog in the manger approach. To Congress, it could be seen as another judiciary effort at delinkage from congressional pay which even our best friends have refused to do, although it would be limited solely to justices which might make it more palatable. But I am not at all sure.

There is a far greater problem. Congress could wield this power to nudge Justices off the Court by refusing any pay increases. As a matter of realpolitik, Rep. Stearns's proposal carried a real risk: would Democrats really vote to increase salaries for the Justices, when the members most likely to retire would be conservatives?

From a tactical point of view, given the public statements made largely by Democratic lobbyists, it will not take the Democrats and liberals in Congress very long to figure out that the prime beneficiaries who might otherwise leave the Court presumably are Justices Thomas and Scalia. The Democrats might be perfectly happy to have them leave and would see little incentive to act on separate legislation devoted solely to Supreme Court Justices if the apparent purpose is to keep Justices Scalia and Thomas on the Court. Moreover, the fact that Representative Stearns is a conservative Republican may not help dissuade the Democrats and liberals from this view.

This political point seems so brazenly obvious. Would the Democrats really go out of their way to make the lifestyles of Justices Scalia and Thomas more comfortable? Of course not. If they could, the Democrats would have cut the electricity in Scalia and Thomas's chambers. Still, it is unusual to see an official correspondence to the Chief Justice that speaks in such overtly partisan terms.

There is one historical callback, as I recall. Before FDR's Court Packing scheme, Justice Van Devanter lobbied Congress to increase the pensions for Justices. Indeed, that supplemental income could have created incentives for Van Devanter to retire early. Congress did not increase the pensions, so Van Devanter stuck around. Those few thousand dollars could have created a vacancy far more easily the Court packing scheme. Eventually, Congress did increase the pension in 1937, which lead to Van Devanter's retirement.

Under the Presidential Compensation Clause, the President's salary can neither be increased nor decreased during the President's term in office. That prohibition is acceptable for a four-year term. I sometimes wonder whether a similar prohibition would make sense for the judiciary. It is problematic for members of the courts to lobby Congress for increases in their salaries. In light of the separation of powers, I see this sort of lobbying as an actual conflict of interest, and not like one of those manufactured ones that ProPublica likes to write about. Of course, given the fact that judges serve for decades, and inflation is rampant, a fixed salary would be untenable. Perhaps a Constitutional amendment to provide a cost-of-living adjustment would work.  During the Constitutional Convention, Madison actually proposed pegging judge's salary to the price of a commodity like wheat. That could work also.