Balkinization: Pleading for Judicial Raises is an Old Story (Pardon the Pun)

Pleading for Judicial Raises is an Old Story (Pardon the Pun)

Brian Tamanaha

After being elected to the Massachusetts Legislature in 1805, at the age of 26, Joseph Story—who went on to become one of the most accomplished jurists in the history of the United States—immediately took it upon himself to put forth an unpopular bill to increase the salaries of the Judges of the Massachusetts Supreme Court. Their salaries had last been set in 1790, at $1233 for the Chief Judge and $1166 for the other Judges. The Legislature occasionally supplemented these amounts with one year grants, but no permanent raise had been granted in 15 years.

Within a year of joining the legislature, Story’s Committee proposed a bill doubling judicial salaries. The Report suggested that the practice of granting supplements—“which has the immediate tendency to place the judicial department at the footstool of the legislature”—compromised the integrity of the judiciary.

The Committee also inquired whether the relatively low pay skewed the economic backgrounds of prospective judges or reduced their caliber: “Whether, indeed, their compensation ought not to be such, as to command the first talents in the community, and to insure those, who are learned and honest, as well as those who are great and rich, the participation of those judicial honors…”

Despite opposition, the bill passed, raising salaries to $2400 and $2500 (for the Chief). Three years later, in 1809, their salaries were raised again to $3000 and $3500, respectively.

In an autobiography written in 1831 (in Miscellaneous Writings of Joseph Story), Story recalled this event with evident pride: “The measure has secured to her the services some of her ablest lawyers; and in my humble judgment has contributed more to give permanence to her institutions, dignity to her jurisprudence, and steadiness to her prosperity, than any one single measure of the State during the last forty years.”

Two centuries later, again we witness the spectacle of judges going hat in hand to the legislature (this time federal) seeking a long overdue raise, using some of the same arguments that Story did. Their last raise--other than a few cost of living increases--was fifteen years ago, and their earnings have gone down in real terms. Much of the commentary on this subject has not been sympathetic to the judges, with even Judge Posner expressing skepticism (via Leiter). The pay of federal judges sounds like a lot—$150,000 (district), $159,100 (appellate), and $184,000 (Sup. Ct.)—except when compared with the pay of accomplished (or rookie) lawyers and academics.

Posted 9:02 AM by Brian Tamanaha [link]

Comments:

I will note, because I'm a pedant, that it's the Massachusetts Supreme Judicial Court (colloquially, "the SJC"). The seeming redundancy actually serves to differentiate the SJC from the General Court, which is the formal title of the state legislature.

# posted by

alkali : 12:12 PM

i tend to agree with those who espouse the position that judgeships are public service posts that should not be bleeding the public dry. i fully understand and agree that salaries for judges should be such that the best and brightest are attracted to the position and serve. as such, we do not want the position to be underfunded and to go for as long as they presently have without reasonable salary adjustments. i would note, however, that the salaries offered our judges at this time are not exactly chicken feed.

yes, there are first and second year associates at the big white shoe firms that are earning what judges make or more. perhaps what should be examined in that context is not what judges make, but what we are paying completely inexperienced, and in many cases, unqualified attorneys. i would also point out that the vast majority of first year associates are earning nowhere near the salaries of associates at white shoe firms.

perhaps the better comparison would be to the first year associates at public service posts, such as assistant district attorneys, public defenders, city attorney offices, etc., where the first year salaries are in the twenties and thirties. when you start from this vantage point, rather than the so called pinnacle of the profession, a judge's salary is a pretty damned good reward.

as noted by garth and others, nobody is forcing anyone to be a judge. if they don't like the salaries, they can do something else. there are plenty of sound minded attorneys out there who have "judicial temperament" who would make fine judges, and who would accept the salaries.

is there a "crisis" out there over qualified judges leaving the bench. i haven't seen the statistics, so i offer no opinion. i do note that i am not aware of an avalanche of people turning down judgeships when offered to them.

i'm not sure there is a crisis of qualified people not taking the bench when offered, although there may very well be a crisis of people who have gotten used to being paid way more than they or anyone are worth who are not willing to take a cut in pay to enter public service.

# posted by

phg : 9:35 AM