Diminution of Salaries.
“The Compensation Clause has its roots in the longstanding Anglo-American tradition of an independent Judiciary. A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government.”29 Thus, once a salary figure has gone into effect, Congress may not reduce it nor rescind any part of an increase, although prior to the time of its effectiveness Congress may repeal a promised increase. This latter holding was rendered in the context of a statutory salary plan for all federal officers and employees under which increases went automatically into effect on a specified date. Four years running, Congress interdicted the pay increases, but in two instances the increases had become effective, raising the barrier of this clause.30
Also implicating this clause was a Depression-era appropriations act reducing “the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office),” by a fixed amount. Although this provision presented no constitutional questions, it required an interpretation as to which judges were excepted. Judges in the District of Columbia were held protected by Article III,31 but the salaries of the judges of the Court of Claims, a legislative court, were held subject to the reduction.32
In Evans v. Gore,33 the Court invalidated the application of a 1919 income tax law to a sitting federal judge, over the strong dissent of Justice Holmes, joined by Justice Brandeis. This ruling was extended in Miles v. Graham34 to exempt the salary of a judge of the Court of Claims appointed subsequent to the enactment of the taxing act. Evans v. Gore was disapproved and Miles v. Graham was in effect overruled in O’Malley v. Woodrough,35 where the Court upheld section 22 of the Revenue Act of 1932, which extended the application of the income tax to salaries of judges taking office after June 6, 1932. Such a tax was regarded neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the judiciary.36 To subject judges who take office after a stipulated date to a nondiscriminatory tax laid generally on an income, said the Court, “is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.”37
Formally overruling Evans v. Gore, the Court in United States v. Hatter reaffirmed the principle that judges should “share the tax burdens borne by all citizens.”38 “[T]he potential threats to judicial independence that underlie [the Compensation Clause] cannot justify a special judicial exemption from a commonly shared tax.”39 The Medicare tax, extended to all federal employees in 1982, is such a non-discriminatory tax that may be applied to federal judges, the Court held. The 1983 extension of a Social Security tax to then-sitting judges was “a different matter,” however, because the judges were required to participate while almost all other federal employees were given a choice about participation.40 Congress had not cured the constitutional violation by a subsequent enactment that raised judges’ salaries by an amount greater than the amount of Social Security taxes that they were required to pay.41
- United States v. Will, 449 U.S. 200, 217–18 (1980). Hamilton, writing in THE FEDERALIST, No. 79 (J. Cooke ed., 1961), 531, emphasized that “[i]n the general course of human nature, a power over a man’s subsistence amounts to a power over his will.”
- United States v. Will, 449 U.S. 200, 224–30 (1980). In one year, the increase took effect on October 1, although the President signed the bill reducing the amount during the day of October 1. The Court held that the increase had gone into effect by the time the reduction was signed. Will is also authority for the proposition that a general, nondiscriminatory reduction, affecting judges but not aimed solely at them, is covered by the clause. Id. at 226.
- O’Donoghue v. United States, 289 U.S. 516 (1933).
- Williams v. United States, 289 U.S. 553 (1933). But see Glidden Co. v. Zdanok, 370 U.S. 530 (1962).
- 253 U.S. 245 (1920).
- 268 U.S. 501 (1925).
- 307 U.S. 277 (1939).
- 307 U.S. at 278–82.
- 307 U.S. at 282.
- 532 U.S. 557, 571 (2001).
- 532 U.S. at 571.
- 532 U.S. at 572.
- 532 U.S. at 578–81.