Supreme Court Sends Judicial Pay Case Back to Lower Court

The Supreme Court announced Tuesday that it has sent back for further lower court review a case challenging the ability of Congress to withhold cost-of-living pay hikes to federal judges.

Tuesday’s order remanding the case back to the Federal Circuit U.S. Court of Appeals will prolong an effort by seven current and federal judges to see their salaries rise. They think lawmakers violate the Constitution when they exempt judges from annual pay raises when they’re given to other civil servants.

"The proper resolution of that issue affects the federal judiciary's ability not only to safeguard its independence from the political branches, but also to retain and attract the most qualified and diverse members," lawyers for the judges wrote to the court asking the justices to take the case. Their brief even quoted Alexander Hamilton to help make their case.

"Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support," Hamilton wrote in Federalist #79.

A 1989 law established limits on the ability of federal judges to take in outside income but also allowed them to see their salaries increase each year in line with other federal employees. But in some years lawmakers on Capitol Hill have blocked those pay hikes from going into effect even when other federal employees saw an uptick in their paychecks.

The judges contend Congress violates the Constitution when it holds the line on their pay but approves increases for others. Federal judges will make at least $174,000 this year. The issue has been of particular interest to Chief Justice John Roberts who several years ago spoke on behalf of "dedicated federal judges who, year after year, have discharged their important duties for steadily eroding real pay."

In 2002, the high court refused to take the case over the objection of Justices Stephen Breyer, Antonin Scalia and Anthony Kennedy. Scalia and Breyer once again said they’d take the case. Kennedy’s view of the case weren’t noted in the one-page order.

Principal Deputy Solicitor General Neal Katyal argued to the high court that the plaintiff judges shouldn't be allowed to re-litigate the case and also claimed the Constitution doesn't prohibit Congress from taking away a promised salary increase--so long as it doesn't actually diminish a judge's paycheck. The court made note of Katyal’s first argument but said it was a matter that needed to be more fully addressed in the court below.