Who Wants to be a Millionaire?
posted by Frank Pasquale
Chief Justice Roberts raised eyebrows earlier this year by complaining that low federal judicial salaries threatened to create a “constitutional crisis.” Justice Kennedy has reiterated the chief’s view. The blogosphere is split on the issue, admitting that judges do a lot more for society than many of those paid much more….but also puzzled by the need to peg judicial salaries above, say, Congressional ones. Should we rally behind the Justices’ call to raise judicial salaries from current levels (which, at 160K, put them in 95th percentile of American wage-earners)? I think there’s an argument for that position, but it’s not the one the Justices are making.
The justices focus on comparisons between federal judges and high-paying coastal firms. In Kennedy’s words, “[s]omething is wrong when a judge’s law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before.” However, not many lawyers practice at those firms. The median lawyer makes 96K per year, and a federal judge’s salary of 160K is well above that (and well outpaces the median income of all households, about $46K).
On the other hand, given that “profits per partner at the nation’s 100 highest-grossing law firms in 2005 averaged $1.07 million,” judicial salaries might seem paltry in comparison. But is this the proper reference group? It strikes me that the SC’s perspective on matters financial can be unduly patrician. Consider this comment from the NYT on their view of “extreme punishment,” as evidenced by yesterday’s Philip Morris case:
The court in recent years has become increasingly activist when it comes to defending the rights of corporations by striking down punitive damage awards. . . . Unfortunately, the court has been far less activist when ordinary people seek protection or challenge their punishments. The ruling stands in particular contrast with the court’s 2003 decision that the Eighth Amendment’s ban on “cruel and unusual punishments” did not bar California, under its “three strikes” law, from sentencing a man to 50 years in prison for stealing $153.53 worth of videotapes.
Many supreme court justices have a net worth of over $1 million, and thus can afford housing outside of areas where they’d actually casually run into people who routinely run afoul of the justice system (or the relatives who may be devastated by their long imprisonment). The people on the “wrong side of the law” may be utter strangers to them, so it’s not surprising when an SC majority throws up its hands and looks the other way in cases like “3 strikes.” On the other hand, they know quite well how devastating unpredictable punitive damages judgments can be for a portfolio.
So do constrained judicial salaries somehow produce a more representative judiciary? It’s tempting to think so, especially since the overheated DC housing market could well force someone with a salary of, say, 160K (and few assets) to purchase a home in a neighborhood rife with urban problems (i.e., crumbling schools, crime, etc.). But I think it may have precisely the opposite effect, pushing would-be judges to insulate themselves from such “penury” by making as much as possible before ascending to the bench. So higher salaries may help ensure a bench more diverse in its class character, and less the province of “noblesse oblige.”