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 were not increased. Stearns memorialized this conversation in a letter to Thomas:
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:
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.
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:
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?
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.