The Plight of Pragmatist Jell-O

January 1, 2009 11:02 PM by S.M. Oliva (Archive)

Three years ago today, I criticized Chief Justice John Roberts, Jr. for complaining about the 'inadequate' pay of federal judges. Well here we are again -- It's New Year's Day and Roberts is still complaining:

If the Nation wants to preserve the quality of American justice, the government must attract and retain the finest legal minds, including accomplished lawyers who are already in high demand, to join the bench as a lifelong calling.

I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again--Congress must provide judicial compensation that keeps pace with inflation. Judges knew what the pay was when they answered the call of public service. But they did not know that Congress would steadily erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases . . . Congress failed, once again, to provide federal judges an annual cost-of-living increase this year, even though it provided one to every other federal employee, including every Member of Congress. Congress's inaction this year vividly illustrates why judges' salaries have declined in real terms over the past twenty years.

We can certainly berate Roberts for complaining about judicial pay: His own salary is a measly $217,400 per year - the same as the speaker of the House and the vice president - while associate justices earn $208,100. And for all of Roberts' sniping that Congress gave itself a pay increase, House and Senate members still earn nearly $40,000 per year less than the justices. Even district court judges earn $165,200, compared to $169,300 for members of Congress.

Perhaps the more interesting question is what do the taxpayers - the "consumers" of judicial services - get for their money? Let's examine the Supreme Court itself. According to Roberts, the court received 8,241 filings during the term beginning October 1, 2007 and ending September 30, 2008. More than 80% of these filings were unpaid, "in forma pauperis" petitions, primarily from prison inmates. Just 1,614 were paid filings, which must be accompanied by a $300 docket fee.

Since 1925, the Supreme Court has had near-total control of its docket. The justices alone decide what cases to hear "on the merits." Accordingly, out of those 8,241 total filings from the 2007 term, the court only heard oral arguments in 75 cases - or 0.91%. Just image having a job where you could disregard 99.09% of the work assigned to you!

Seventy-two these cases resulted in a written disposition (the other three were presumably dismissed.) In 67 of those 72 cases, one or more justices authored signed opinions. The court tends to equally divide opinion writing among its members, so on average each of the nine justices authored 7.44 opinions. Viewed as a function of an associate justice's salary, each member of the court received $27,970.43 per majority (or controlling plurality) opinion authored. Put another way, each justice earned $2,774.67 per case argued, meaning a single case heard by the entire court consumed $24,971.67 in "judicial services."

And what is the precise service one obtains for spending a five-figure sum? Stripped of pretense, what you get is a very expensive law review article. A justice's "product" is his writing, yet most of the research and drafting is done before he gets involved. The attorneys representing the parties in the case prepare exhaustive briefs that provide a roadmap to the opposing viewpoints. The justices then outsource the balance of the work to law clerks - recent law school graduates who are paid even less than the "underpaid" justices. Law clerks review and eliminate the 99.09% of cases that are never heard on the merits. These same clerks then perform most of the additional research and initial drafting for the justices' opinions in the remaining 0.91% of cases that are heard. The only major burden the justices bear is the one hour - 60 whole minutes! - of oral argument, which largely reiterates the written briefs and clerk research.

And after all that work is performed by (and for) the justice, the resulting opinion is just that - an opinion as to what the law might be given the facts of the case. The opinion might command the unanimous endorsement of the court, but more frequently there is dissent, even among justices who agree about the preferred outcome of a case. In some cases, the justices fail to reach any meaningful consensus, as illustrated by this actual headnote from a 1996 case involving the First Amendment:

Stevens, J., announced the judgment of the Court, and delivered the opinion of the Court with respects to Parts I, II, and VII, in which Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, the opinion of the Court with respect to Part VIII, in which Scalia, Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with respect to Parts III and V, in which Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with respect to Part VI, in which Kennedy, Thomas, and Ginsburg, JJ., joined, and an opinion with respect to Part IV, in which Kennedy and Ginsburg, JJ., joined. Scalia, J., and Thomas, J., filed opinions concurring in part and concurring in the judgment. O'Connor, J., filed an opinion concurring in the judgment, in which Rehnquist, C. J., and Souter and Breyer, JJ., joined.

Does this sound like a useful service? The rallying cry of every statist and minarchist is that monopoly government is indispensable as a "final arbiter" of social disagreements. Well what happens when the final arbiter can't decide? Maybe we can resort to rock-paper-scissors, best three out of five.

During his confirmation hearings, John Roberts compared the role of a justice to that of a baseball umpire - a neutral arbiter of rules. It's a cute analogy, and many commentators seized upon this idea to reanimate the discussion of "activist" versus "constructionist" judges. But there's an obvious flaw with Roberts' comparison: baseball umpires operate within the marketplace, not the monopoly state.

One does not become a Major League umpire through an irrevocable political appointment. Potential umpires receive special vocational training followed by a steady upward progression through the minor leagues. Umpires are expected to know and apply all of the rules of baseball. And once an umpire is promoted to the majors, he is continually graded and assessed on performance. Umpires who perform well over many years of service receive increased pay and benefits, such as playoff and World Series assignments.

Supreme Court justices, in contrast, need not demonstrate any particular aptitude or skill prior to their lifetime appointment. They can never be downgraded to the lower courts for poor performance or removed for incompetence. Justices can write opinions in cases involving fields of law where they have no previous experience or knowledge. Every justice earns the same salary regardless of tenure, experience or performance.

Roberts argues, "the government must attract and retain the finest legal minds . . . to join the bench as a lifelong calling." But great minds do not make the government function better; the government reduces great minds to mediocrity. In a monopoly state where there is no price system, no incentive to serve customers and the protection of life tenure, even the greatest legal mind will devolve into pragmatist Jell-O. Just look at Richard Posner. (Or if we're talking about economics, Alan Greenspan.)