Three justices would have heard judicial salary case.

• Author: Sanders, Carol McHugh
• Position: US Supreme Court

In an unusual dissent to the denial of a petition for certiorari, three U.S. Supreme Court justices said they would have heard an appeal questioning Congress's authority to restrict cost of living raises for federal judges.

Justice Breyer, in a dissent in which Justices Scalia and Kennedy joined, said he would have granted the writ of certiorari in Williams v. United States, 122 S.Ct. 1221 (2002), to determine if Congress had violated the Ethics Reform Act of 1989. That act strictly limits the type of outside income that federal judges may earn, but it also sets up a mechanism to assure that "real" compensation for judges stays at a nearly constant level. Judicial compensation would be kept at that level through a formula for cost-of-living pay increases, which would take effect whenever there was a similar adjustment in the salaries of most federal civil servants.

The pay adjustments under the Ethics Act take place annually and automatically unless the President determines that a national emergency or serious economic conditions affecting the general public should trump them. In 1995, 1996, 1997 and 1999, salary adjustments for the rest of federal employees took effect, but not so for federal judges. The raises for those years was overridden by Congressional appropriations legislation providing that salaries for members of Congress, certain high-level executive branch employees and federal judges would not be adjusted.

In 1997, U.S. District Court Judge Spencer Williams, along with other judges who were sitting on the federal bench when the Ethics Act took effect, sued the United States, alleging that the Congressional "blocking laws" diminished their compensation in violation of the Constitution's compensation clause in Section 1 of Article III, which provides that federal judges' compensation shall not be diminished during their terms in office. The district court ruled in favor of the judges, but the Court of Appeals for the Federal Circuit, in a split decision, reversed. 240 F.3d 1019 (2001).

Petitioning for a writ of certiorari, the judges argued that the U.S. Founding Fathers deliberately mentioned federal judges in the compensation clause because they wanted to establish an independent judiciary that would not have to worry about a drop in salary from legislative acts. They also argued that the...