Constitutional crises and the eyes of beholders

Sandy Levinson

Today's New York Times has an article indicating that Chief Justice Roberts made "judicial pay the sole topic of his second annual report, issued on Sunday, declaring that the failure by Congress to raise federal judges’ salaries in recent years has become a “constitutional crisis” that puts the future of the federal courts in jeopardy." I note for the record that I was chastised earlier for declaring ourselves to be enroute to a "constitutional crisis" because a patently incompetent and quasi-delusional Commander-in-Chief was quite likely to make decisions in Iraq that would only dig us more deeply in the Iraq quagmire. My critics pointed out that it could not, by definition, be a "constitutional crisis" because Mr. Bush, however incompetent and delusional he may be, nevertheless, thanks to our Constitution, continues to possess all legal powers attached to being Commander-in-Chief, which includes, of course, the power to make disastrous decisions that will result in the further pointless loss of lives both American and Iraqi. Fair enough.

But then what should we say about a Chief Justice who suggests that it is a "constitutional crisis" if Congress takes advantage of its constitutional prerogatives to refuse to raise the salaries of federal judges? As it happens, I agree with him that pay raises are long overdue, but not necessarily for members of the US Supreme Court, frankly, who have cushy jobs and are treated like kings and queens. The judges who deserve the raises are especially the district judges, though I am also sympathetic to the plight of appellate judges who, unlike their "superiors" in Washington, cannot exercise control over their docket and thus reserve ever more time for interesting travel, attendance at conferences (where they will be fawned over, unlike "inferior" judges who tend to be treated like more-or-less human beings).

So, if John Roberts can be cited as authority for the rather freewheeling use of the term "constitutional crisis," then I respectfully submit that the continued habitation of the Whte House for another 750 days by George W. Bush (who would be succeeded, should anything happen to him, by the even more egregious Dick Chaney) is a far better candidate for that term than the fact that the Chief Justice had to take an 80% pay cut to join the Supreme Court.

Happy New Year.
Posted 12:15 AM by Sandy Levinson [link]