Monday, November 25, 2002

MAD HATTER (originally posted 5/21/01)

Justice Scalia properly rejected the majority's "discrimination" rationale in United States v. Hatter, No. 99-1978, the judicial pay-raise case under the Compensation Clause that the Court handed down today. But how is this aspect of Justice Scalia's opinion to be squared with his joining of the majority's mootness holding in Part V? The key paragraph in that section of Justice Breyer's opinion rests upon the following hypothetical: He asks what would would happen if a pay cut affecting some judges were offset by a later pay raise affecting all judges. He says that this "would leave the first group permanently" behind the rest of the judges. So what? Congress could clearly, consistent with the Compensation Clauser, raise the salaries of some, buyt not all, federal judges, leaving the other judges' salaries flat. That would similarly "leave the first group permanently" behind. This has nothing whatever to do with whether anybody's "Compensation" has been "diminished."


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