People Have Questions About the Timing of Trump's DOJ Indictment
Trump Indicted in Classified Doc Probe
The FBI's Manufactured Narrative for the Biden Corruption Investigation Has Collapsed
Biden's Response to a Question About His Family's Alleged Bribery Scheme Is Really...
Here Are Some of the Worst Russian Collusion Hoax Peddlers in the Media
MTG Shares 'Shocking' Details After Viewing Biden Bribery Document
Gavin Newsom's Latest Radical Idea for Nationwide Gun Control
Montana Republican's Message for Democrats Complaining About Wildfire Smoke
Poll Finds More Americans Are Shifting to Conservatism Despite the Left's Liberal Push
Liberals Try to Undermine Tucker Carlson's First Successful Twitter Show, But It Backfires
Dark Money Liberal Groups Are Expected to Impact the 2024 Election
Biden Administration Is Really Ratcheting Up Pride Month Celebrations
New Poll Shows Americans’ Views on Affirmative Action
Missouri Gov. Signs Bills Banning Trans Surgeries for Children and Protecting Women’s Spor...
The Left's Reaction to the Wildfires Is Just What You'd Expect

Americans Get The Judiciary We Pay For

The opinions expressed by columnists are their own and do not necessarily represent the views of

WASHINGTON -- On New Year's Day, Chief Justice John Roberts, pursuant to his duty to report annually on the condition of the federal judiciary, issued a short and persuasive plea. It was lost in the cacophony of political news.

Besides, why worry about the judiciary? We have Alexander Hamilton's assurances, from Federalist 78, that the judiciary is "the least dangerous" branch of government. Having "neither force nor will, but merely judgment," it "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever."

Few passages from the Federalist seem as anachronistic today. Almost all social controversies seem to lead to the judiciary, and often up to the Supreme Court. So Roberts' report on the condition of the judiciary should interest a country selecting its next president, who, if he or she serves two terms, will fill about half the 875 seats on the federal bench. Now more than ever, but probably less today than tomorrow, the judicial branch is central to governance.

Roberts' report recounts accompanying a Russian judge walking among Arlington National Cemetery's white headstones, at one of which the Russian placed a wreath honoring Chief Justice William Rehnquist, who had lent moral support when, during the transition from communism, Russia's legislature was impeding judicial reforms. "When foreign nations discard despotism and undertake to reform their judicial systems," Roberts wrote, "they look to the United States judiciary as the model for securing the rule of law." The problem, Roberts believes, is that we are not paying enough to acquire judicial competence commensurate with the importance of courts in our system.

Last year the House Judiciary Committee voted 28-5 for a significant but only partial restoration of what has been lost: The bill would have increased judicial pay to what it would be if judges had received the same cost-of-living increases that other federal employees have received since 1989. The Senate Judiciary Committee was considering similar legislation when last year's session ended.

The denial of annual increases, Roberts wrote, "has left federal trial judges -- the backbone of our system of justice -- earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located." The cost of rectifying this would be less than .004 percent of the federal budget. The cost of not doing so will be a decrease in the quality of an increasingly important judiciary -- and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector -- from the practicing bar -- and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.

Upon what meat hath our judiciary fed in growing so great? The meat of modern liberalism, the animating doctrine of the regulatory and redistributionist state. Courts have been pulled where politics, emancipated from constitutional constraints, has taken the law -- into every facet of life.

In the 1930s the Supreme Court, coming to terms with New Deal politics, put aside the idea that the Constitution created a federal government of limited, because enumerated, powers. As politics permeated economic and other spheres of life hitherto ordered by private arrangements, the judiciary was drawn into the ordering of life under metastasizing laws. There is no longer any living memory of life before the federal government slipped the leash of constitutional limits on its scope of action, and stopped acknowledging any practical limits to its competence. Since the New Deal, under the Great Society expansion of the political sphere, the trend intensified. As James Q. Wilson has written, New Deal liberalism was concerned only -- only! -- with who got what, when, where and how; liberalism in Lyndon Johnson's hands became concerned with who thinks what, who acts when, who lives where and who feels how. Conservatives regret this development but must come to terms with its imperatives, one of which is: The enlargement of the judiciary's role by the regulatory state requires compensation of the judiciary commensurate with its ever-expanding importance. That importance, although regrettable, is a fact, and so is this: You get the quality -- and the perspective -- you pay for.

Join the conversation as a VIP Member


Trending on Townhall Video