Justice Thomas’s Pay

The campaign to drive Justice Clarence Thomas off the Supreme Court moves into new territory with the reports that he has complained about his pay. These pieces, in the Times and ProPublica, have been delivered with a slight tone of scandal. They report that a generation ago, Justice Thomas complained to a member of Congress about the diminishment of justices’s pay and warned that some might quit the court over it.Both the Times and ProPublica mention the recent hubbub over the gifts Justice Thomas has received from wealthy friends. They fail to mention, though, how the Revolutionary Founders of America would have viewed all this. They would have been shocked down to the ground. For judges’ pay was one of the enumerated reasons that America broke with England in the first place and struck for independence.The enumeration of judges’ pay as a revolutionary issue is in the Declaration of Independence itself. It complains that George III “has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” This is why the Constitution requires that judges get to serve for life and must be paid for their services “a Compensation which shall not be diminished during their Continuance in Office.”To be clear: It is unconstitutional in America to diminish a judge’s pay. Why the stories on Justice Thomas in the Times and ProPublica fail to mention that is beyond us. Is Justice Thomas the only one around here who’s read the blasted Constitution? It’s not just that it’s unconstitutional to lower a judge’s pay. It’s that for years Congress, to which the Constitution grants the monetary powers, has been doing just that.The Times does capture a glimmer of this: “In 2000,” it reports, “Justice Thomas’s salary, that of an associate justice on the court, was $173,600 a year — more than $300,000 today. (Justice Thomas and the other associate justices are paid $285,400 a year now.)” The parentheses are the Times’. This means that just since 2000, Justice Thomas’ pay has been diminished by nearly $15,000. Over the years, it adds up.That understates the predicament that Justice Thomas and other judges face. Justice Thomas started on the court a lot earlier than the year 2000. He became a justice on October 23, 1991. His salary then was $153,600, which at the time was valued at some 423 ounces of gold, the basis of monetary value. Since then the gold value of Justice Thomas’s salary has been diminished to the current equivalent of only about 135 ounces.That’s a staggering drop. It puts Justice Thomas’ complaint in sharp relief. It means that during Justice Thomas’ tenure on the high bench the value of his compensation has been diminished by something like 68 percent. In other words, what Justice Thomas comprehends is that the salary he has been allotted by Congress — the George III in this drama — is unconstitutional and is also in violation of the Declaration of Independence.It might be — it apparently is — that the Times and ProPublica are scandalized that Justice Thomas has from time to time rattled the cage over the diminishment of his pay and that of the other justices. By our lights the scandal is that so few others have been pressing the case for constitutional compensation for our judges. It’s not surprising that Justice Thomas is out front on this head. He’s an exceptionally courageous character.We understand that the legal establishment will snicker at our view of this as eccentric. We’re sticking with it. Those who believe in a strong, confident, independent judiciary ought to be celebrating Justice Thomas démarche on diminishment. There’s no doubt in our mind that George Washington, Alexander Hamilton, Thomas Jefferson, and James Madison would comprehend the importance of Justice Thomas’ complaint.

Justice Thomas’s Pay

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