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Article Excerpt
Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other problems, fee-paid judges were understood to have a financial interest in expanding their jurisdiction. By placing federal judges on salary, Article III may have provided subtle institutional support for the notion that federal courts were to be courts of limited jurisdiction.
This Article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic. It shows that Congress chose a salary-based compensation scheme, and took early steps to rule out fee payments to federal judges. The Article also demonstrates that the judicial salary was understood to include compensation for official travel, a fact that sheds important new light on the Supreme Court Justices' hostility to the burdens, and expense, of riding the circuit. The Article suggests that financial self-interest may have played a role in shaping the early definition of judicial power and the willingness of the Justices to take on extra judicial assignments. Such familiar episodes in the historiography of the early Republic as the refusal of the circuit courts to hear pension claims, the Court's refusal to issue advisory opinions, the paradoxical willingness of Chief Justice Jay to accept a position as ambassador to Great Britain, and the Court's complex response in Marbury v. Madison to the repeal and reestablishment of circuit duties all take on new meaning when viewed against the backdrop of financial self-interest. Concluding remarks focus on judicial independence and the way Article III frames debate over judicial compensation and workload.
TABLE OF CONTENTS INTRODUCTION I. THE COLONIAL AND EARLY STATEHOOD CRITIQUE OF FEE-BASED COMPENSATION II. FRAMING ARTICLE III's COMPENSATION PROVISION III. JUDICIAL COMPENSATION IN THE FEDERALIST ERA A. Travel Expenses and Judicial Salaries B. Congressional Preclusion of Fee-Based Judicial Compensation IV. SALARIES, TRAVEL EXPENSES, AND EXTRAJUDICIAL DUTIES A. Circuit Duty and Rotation B. Circuit Duty: Eliminating Circuit Riding C. Extrajudicial Duties: Pensions, Advisory Opinions, and Plural Officeholding D. Marshall, Circuit Riding, and the Revolution of 1801 CONCLUSION APPENDIX
INTRODUCTION
Chief Justice John G. Roberts, Jr. drew headlines on January 1, 2007, when he devoted his year-end report to an argument for a judicial pay increase. (1) Whatever the report's merits as an advocacy piece, (2) its submission would not have surprised James Madison. Madison had proposed precluding any change in judicial pay, both increases and reductions, for fear that judges would approach Congress hat in hand (to secure the one and avoid the other). (3) But Madison's colleagues at the Philadelphia convention did not agree. Madison was outvoted--twice--by those concerned less about the erosion of judicial independence than about the erosion of judicial salaries through wage and price inflation and the steady accumulation of additional work. (4) As a result, the final terms of Article III establish a one-way ratchet that permits Congress to raise but not reduce judicial compensation. (5) Such a provision encourages Congress to err on the low side of judicial pay, and assures the sort of interbranch dialogue exemplified by the Chief's report. (6)
Just as Article III's one-way ratchet structures interbranch dialog about the adequacy of judicial compensation, the form of compensation may shape the incentives of the federal judiciary. At the time of the framing, the judges of superior courts in England received two forms of compensation: a salary paid by the Crown and fees paid to the judges by the litigants themselves on a piecework basis. (7) (The winning party could recover its own court fees from the loser as part of the taxable costs of litigation.) (8) Fee-paid judges were also commonplace in colonial America; justices of the peace and the judges of the colonial vice-admiralty courts received a substantial share of their compensation in the form of fees. (9) But reliance on litigant fees to compensate judges had grown controversial during the eighteenth century. After the Declaration of Independence, new state constitutions often imposed restrictions designed to moderate the corrupting influence of fee-based judicial compensation. For example, Maryland's constitution called for a secure judicial salary, and foreclosed judges from both holding other offices and receiving any fees or perquisites of office. (10)
Article III does not follow the Maryland Constitution in expressly foreclosing fee-based compensation. But it may establish a presumption in favor of salary-based compensation. (11) The well-known terms of Article III require that federal judges receive for their services, "at stated Times" a "compensation" that shall not be diminished during their continuation in office. The word "compensation" is broad enough to encompass all forms of judicial pay, including both salaries and fees (and other emoluments of office). The requirement that this compensation be paid "at stated Times" appears to have been framed with judicial salaries in mind; fee-based compensation was paid at various times over the course of the litigation. Similarly, the nodiminution rule may contemplate the certainty of a salary rather than the fluidity of fee-based compensation; the ebbs and flows inherent in fee-based payment systems would not obviously comply with the no-diminution requirement. (12) Certainly, the debates in Philadelphia between Madison and Gouverneur Morris over the impact of inflation on fixed judicial salaries assume that Article III calls for the payment of salary-based compensation. (13)
To the extent that Article III establishes a presumption in favor of salary-based compensation, it apparently seeks both to ward off corruption in office and to provide subtle structural support for the view of federal courts as courts of limited jurisdiction. Founding era debates took for granted the fact that the English superior courts had expanded their jurisdiction through the use of legal fictions. (14) Fee-based compensation offered an obvious financial incentive for judges to indulge in such fictional docket expansion. Indeed, Professor Daniel Klerman has suggested that fee-based compensation may have led not only to jurisdictional expansion but also to the development of plaintiff-friendly legal doctrines that would attract new business that only plaintiffs could steer to their courts. (15) If competition for fees tended to encourage judges to grasp for new judicial business, then salary-based compensation would have the opposite tendency. Rather than seeking new business, judges on a salary might predictably view new assignments with some suspicion. (16) Such assignments would bring the burdens of more work without the promise of any immediate compensation. A salary-based compensation system might help to encourage federal courts to stay within the boundaries of Article III, rather than competing for business with one another or with the state courts.
Congress followed Article III's lead in providing for the payment of salaries to federal judges. (17) Interestingly, the use of fictions to secure jurisdictional expansion does not appear to have characterized the practice of the early federal courts. (18) Indeed, to a striking degree, early jurisdictional controversies tended to flow from the refusal of the judges to take on new assignments. In Hayburn's Case, the Justices cited the lack of judicial finality in support of their refusal to sit as judges of the circuit courts to decide the pension claims of disabled war veterans. (19) Striking a similar tone in later correspondence, the Court refused to issue advisory opinions at the behest of the executive branch. (20) In both instances, the Justices couched their objections in terms of the separation of powers--and no doubt such principles played a central role in their refusal to act. But the subtle influence of their salary-based, rather than fee-based, compensation may have helped confirm the wisdom of their principles. Both tasks would have added a significant new share of work to their judicial obligations.
This Article explores the way judicial compensation and financial self-interest may have influenced the formative years of the federal judiciary. (21) Consider the influence of compensation on the Justices' attitude toward circuit riding, a chore they were assigned in the Judiciary Act of 1789. (22) While historians have emphasized the physical burdens of the circuit, they have paid somewhat less attention to the fact that circuit riding also represented an important pocketbook issue for the Justices. Congress paid federal judges a flat salary and the Justices were expected to pay their own expenses when traveling to attend their circuits. (23) As a result, any reduction in circuit-tiding duties would effectively represent a significant, but to the public largely invisible, salary increase for the Justices. By contrast, the judges would experience any expansion of circuit duties (such as those involving the disability claims of war veterans) as an uncompensated addition to their official chores.
Understanding the financial self-interest that informed the Justices' complaints about circuit riding sheds new light on a variety of familiar episodes in the historiography of the early federal courts. Perhaps most notably, the decision of the lame-duck Federalist Congress to abolish circuit riding in the Judiciary Act of 1801 represented a significant (real) pay increase for sitting Supreme Court Justices. (24) By the same token, the Act's repeal one year later, along with the restoration of both the burden and expense of circuit riding duties, effectively cancelled the pay increase. More subtly, the salary implications of circuit riding help to explain the constitutional context in which such important cases as Marbury v. Madison (25) and Stuart v. Laird (26) were decided. (27) When one understands that, from a certain perspective, the Justices had already been compensated for circuit riding in their salary, one can better understand the threat of impeachment that confronted the Justices who contemplated a refusal to ride their circuits in the wake of the 1802 repeal. By contrast, from the Justices' perspective, the legislation must have appeared to threaten a significant and constitutionally doubtful expansion in the burdens of their office. (28)
In exploring the influence of judicial compensation on the formative years of the federal judiciary, this Article proceeds in four Parts. Part I briefly sketches the English and colonial background of judicial compensation, with a special emphasis on the problems associated with fee-based compensation. While fees remained a common form of compensation among the lower courts, many states had abolished fee payments to superior court judges by the time of the Constitution's framing. Part II traces the evolution of Article III's judicial compensation provisions at the Philadelphia Convention, highlighting the textual and historical arguments for viewing the provision as presumptively requiring salary payments to federal judges. Part III examines evidence from the Federalist era about the manner in which federal judges were paid. It explores the case of Judge Bee's acceptance of admiralty fees, and evidence that his case may have been exceptional. Part IV reexamines some of the leading jurisdictional landmarks of the period, including the decision of Chief Justice John Jay to accept an appointment as envoy to Great Britain, with the better understanding of judicial motivation that this background on judicial compensation provides. (29) Concluding remarks consider the role that Article III and the statutory framework of judicial compensation may have played in shaping judicial behavior. Perhaps the preference for salary was meant to provide institutional support for the conception of federal courts as courts of limited jurisdiction.
I. THE COLONIAL AND EARLY STATEHOOD CRITIQUE OF FEE-BASED COMPENSATION
In England, at the time of the Revolution, the judges of the courts at Westminster received both salaries (payable under the Act of Settlement) (30) and fees. (31) Fees were ordinarily paid by the parties during the course of the litigation and were ultimately recovered by the winner from the loser in the bill of costs. (32) Litigation fees were typically triggered at various stages of the process, with specified amounts due to initiate the litigation, to serve the defendant with process, to empanel a jury, and so forth. One portion of the fees went to the clerks, bailiffs, recorders, and sheriffs that performed the services in question. Another share went to the judges themselves. Scholars reckon that superior court judges in England received substantial fee-based income. Indeed, late eighteenth-century chief judges of the superior courts earned nearly as much in fees as they did in salary. (33)
England planted the fee system in British North America along with its first settlements. Governors, in particular, could earn substantial fees to supplement their salary. (34) These included judicial fees (in Virginia, the governor served as the chief justice and elsewhere participated in appeals to the colony's council or high court), and administrative fees, such as fees to record land purchases and to admit estates to probate. Lesser officials earned fees as well. (35) Some of the fee payments went to officeholders who performed little real work, a fact of life that fueled colonial anger at do-nothing "placemen." If no law required public notice as to the fees actually payable for a service, officers would often defraud citizens by demanding excessive fees. (36) Fee-based compensation helped to raise the price of securing judicial decrees in debt litigation and fueled both the Regulator Movement in North Carolina and Shays' Rebellion in Massachusetts. (37)
Fee-based compensation attracted several other criticisms during the colonial period. First was the concern that fee-based payment systems could lead to the payment and acceptance of bribes. (38) Chancellors in England earned substantial fee income and, if Lord Bacon's experience were representative, may have had some difficulty in distinguishing the acceptance of litigant fees from the acceptance of litigant gifts and bribes. (39) Indeed, Bacon's defense--that he took the money from both sides and did not let it influence his resolution of any claims--may have struck a chord with his contemporaries at court, even as it led to the end of his public career. (40) By the time of the Commonwealth, critics of royal government had attacked fee-based compensation as an invitation to fraud and bribery, terms that were to anticipate the American critique. (41)
Fee-based payment systems were sometimes structured in ways that encouraged the judge to rule in a particular way, and the colonists vigorously attacked such systems. Consider, for example, the operation of the vice-admiralty courts in British North America. The judges of such courts were paid both salaries and fees, but both parts of their compensation packages were dependent on the condemnation of vessels to create a fund from which payments were made. (42) Fees, in particular, were payable only when the court agreed with the prosecutor or plaintiff that the defendant's breach of the navigation laws required a forfeiture of the vessel. In other words, vice-admiralty judges were paid fees when they condemned the vessel but denied any fee payment when they ruled in favor of its owner. Such a payment system gave the judges a clear financial stake in the outcome of the case, in direct contrast to fee-based systems in which both litigants pay and the winner recovers fees from the loser as part of taxable costs, (43) and would today violate the guarantee of due process of law. (44) Without juries to moderate judicial inclinations, the vice-admiralty courts understandably drew the colonists' fire.
Perhaps the subtlest criticism portrayed fee-based systems as encouraging the judges to compete for business. As one possible by-product of this competition, English superior courts adopted legal fictions that enabled them to expand their jurisdiction into areas of private civil litigation that had previously been the domain of the court of common pleas. (45) Critics understandably viewed these jurisdiction-expanding fictions as driven in part by the judges' selfish desire to increase their fee revenue. Scholars today have begun to assess the impact of fees on the development of legal doctrine, hypothesizing that courts may have shaped substantive law to attract more business. (46) Whether fees influenced substantive doctrine or not, it seems fairly obvious that fees may have encouraged judges to adopt a broad view of their own jurisdiction and their competence to grant expansive forms of relief. (47)
By the time of the Constitutional Convention in 1787, these criticisms of fee-based judicial compensation had produced a number of state statutes and constitutional provisions that foreclosed payment of fees to superior court judges. Consider the language of the Maryland Constitution, which declared that "salaries, liberal, but not profuse, ought to be secured to the Chancellor and the Judges, during the continuance of their commissions." (48) It went on to declare that "[n]o Chancellor or Judge ought to hold any other office, civil or military, or receive fees or perquisites of any kind." (49) Pennsylvania's constitution delivered a similarly twofold message, providing for a fixed salary for superior court judges in one provision and prohibiting inferior court judges from taking any fees or salaries except as provided by law. (50) Both the Maryland and Pennsylvania provisions explicitly ruled out fees for superior court judges. (51)
Other state constitutions were somewhat less definitive, favoring salaries for superior court judges but saying nothing in terms to rule out the receipt of fees. For example, the Massachusetts Constitution provided that "the judges of the supreme judicial court should hold their offices as long as they behave themselves well, and that they should have honorable salaries ascertained and established by standing laws." (52) Massachusetts thus followed the Act of Settlement in linking good-behavior tenure to an "ascertained and established" salary. But just as the Act of Settlement was seen as compatible with the continued receipt of fees, so too could one argue that the Massachusetts Constitution left open the possibility of fee payments to judges on salary. Other state constitutions stopped short of expressly foreclosing the payment of fees but specified fixed salaries for judges of superior courts. These constitutions may have thus implicitly ruled out fees, a source of compensation that would vary with the caseload of the court. (53)
Founding era hostility to fee-based compensation can also be seen in the history of the first federal court, the Court of Appeals in Cases of Prize and Capture. (54) Set up during the Revolution to hear appeals from the state courts on the prize claims of American naval vessels and privateers, (55) the Court of Appeals employed judges commissioned by Congress and paid a salary. Although the salary was hard to settle in light of the declining value of continental money, (56) Congress initially ruled out any fee-based compensation. Thus, an early version of the oath of office for judges included an affirmation that the judge "will take no fee, gift or reward." (57) A one percent share of any prize awarded was set aside for deposit in the Treasury to help defray the cost of the court, but (in contrast with the colonial vice-admiralty court) none of this money went to the judges directly. (58)
States did not entirely foreclose the payment of fees to judges, however. For one thing, some states continued to permit fee payments to superior court judges well into the nineteenth century. (59) For another, most states permitted justices of the peace and the judges of other inferior courts to receive their compensation through the payment of fees. These fee-paid judges often served on a part-time basis and often mixed their judicial work with administrative chores. (60) The fee system thus tended to moderate the cost of government and to compensate part-time judges in accordance with the amount of work they performed.
In some cases, it appears that judges on salary were expected to pay the expenses of their office from their own resources, rather than being compensated by the government for their travel. One can see that assumption reflected in a variety of sources, if not expressly spelled out in terms. For example, James Madison recommended to the Continental Congress that it furnish an additional sum of money for the judges of the Court of Appeals in Cases of Prize and Capture to cover the cost of their travel and purchase of books. (61) In contrast to salaried officers who paid their own traveling expenses, court officials compensated by fees were often permitted to include a charge for the cost of their travel. In representative provisions adopted in New York, sheriffs and marshals received fees for the service of process and the expense of traveling to perfect such service. (62)
Heading into the Philadelphia Convention, then, the framers had lived through fundamental changes in the way judges were compensated. As colonists, they had criticized the Crown's control over both the judges' tenure in office and the judges' salary. (63) They had also criticized payment systems that relied on fees from litigants, particularly when those fees were payable (as they were in the vice-admiralty courts) on terms that gave the judge a financial interest in the outcome. (64) Many state constitutions reflected these concerns, shifting from fee-based payments to salaries for judges, especially superior court judges. Although the shift to salaries was not universal, and did not alter the fact that some inferior judges were compensated with fees, the trend toward salary-based compensation appears to have informed the drafting of Article III of the federal Constitution, as the next Part explains.
II. FRAMING ARTICLE III's COMPENSATION PROVISION
Sometimes, significant constitutional provisions hide in plain sight, largely unexplored or perhaps taken for granted. Article III's provision for the payment of compensation to federal judges may be one such provision. Sparely worded, the provision declares that federal judges shall receive for their services "at stated Times ... a Compensation, which shall not be diminished during their Continuance in Office." (65) Scholars and courts increasingly focus on the no-diminution provision, viewing it as linked to both Article III's provision for tenure during good behavior and the founding generation's desire to secure judicial independence. (66) But Article III's compensation provision does more than simply rule out pay cuts for federal judges. The provision requires Congress to pay federal judges compensation "at stated Times." (67) The no-diminution and "stated Times" provisions assume that judges were to be paid salaries and may, implicitly, rule out fee-based compensation for federal judges. (68)
At a minimum, the terms of Article III do not fit particularly well with a fee-based compensation scheme. Fees were payable at various times throughout the course of the litigation, with particular amounts specified for the various chores that a judge might perform. Thus, in New York admiralty proceedings, judges were paid when they placed the court's seal on process, administered an oath to witnesses, accepted affidavits and stipulations, and entered a judgment or sentence. (69) Obviously, a judge's fee-based compensation would arrive irregularly, depending on how litigation progressed on the court's docket. Moreover, fee-based compensation would vary with the caseload; a reduction in case filings would reduce the judges' fee income. Judicial compensation based on the payment of fees was thus in tension with both the "stated Times" and the no-diminution provisions of Article III. (70)
Of course, one might argue that Article III simply requires Congress to pay a salary to federal judges, but does not bar the judges from receiving fees as additional compensation. On this view, the mandatory "shall receive" and "stated Times" language of Article III regulates the time and manner of paying salaries but does not exclude other forms of compensation. One might bolster such an argument by noting that the language of the Act of Settlement, providing for judicial salaries in England to be "ascertained and established," was not read as ruling out supplemental fee income. (71) One might also observe that, unlike the state constitutions of Pennsylvania and Maryland, Article III stops short of saying anything that would expressly foreclose fee payments to federal judges. (72) In support of a fee-based system, the rate of fee-based compensation might be fixed by statute, so as to satisfy the no-diminution requirement, and the time for the payment of fees might be keyed to events in litigation--the date of filing or the date of entry of judgment--so as to satisfy the "stated Times" requirement. Finally, one might contend that fees payable by litigants do not come directly from the fisc and thus do not implicate Article III's regulation of the payment of public money to federal judges.
These arguments for the possibility of fee-based compensation are not particularly forceful. As a textual matter, Article III speaks of the "compensation" that judges must receive, not the "rate" of compensation. In prohibiting reductions in compensation, Article III seems to focus on the amount of judicial compensation, rather than the rate of fees judges may earn. For this reason, the fluctuations inherent in a fee-based compensation scheme seem inconsistent with the no-diminution rule. (73)
As a historical matter, the Act of Settlement may not offer much useful guidance on the availability of fees under Article III. Judges of England's superior courts had long received both salaries and fees as perquisites of their offices. The Act of Settlement did not mean to alter those perquisites. (74) Indeed, the Act of Settlement speaks only to the issue of judicial "salaries," requiring that they be "ascertained and established"; it says nothing about the treatment of fee-based compensation, instead leaving it to vary in accordance with the docket. (75) By contrast, Article III regulates the "compensation" of federal judges, a term broad enough to encompass all forms of payment, and thus raises doubts about the variability of compensation that would result from fee-based payments. (76) In the end, experience in England under the Act of Settlement may not provide the best interpretive context in which to evaluate Article III's compensation provision, which was adopted nearly a century later, after decades of pointed colonial criticism of fee-based payment systems. (77)
One finds additional support for a no-fees interpretation in the drafting history of Article III. (78) The drafting history begins with the ninth resolution of the Virginia plan, which provided that the judges of the federal courts were to hold their offices during good behavior and were to "receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution." (79) Delegates to the Convention viewed the provision as contemplating the payment of salaries out of the treasury, rather than the payment of fees by litigants. Thus, Robert Yates reported in his journal that, in approving the ninth resolution on June 13, the convention had provided that the "judiciary be paid out of the national treasury." (80) The evidence suggests, then, that the decision to drop the reference to fixed compensation was not meant to allow fee-based compensation, but instead to reflect the framers' decision to allow salary increases. (81)
Debates over the contours of the compensation provision appear to confirm that only salary-based compensation was under consideration. The only serious debate on the provision took place on July 18, 1787, when Gouverneur Morris moved successfully to...
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