Taxation, Compensation, and Judicial Independence

51 Pages Posted: 1 Nov 2006

See all articles by Jonathan L. Entin

Jonathan L. Entin

Case Western Reserve University School of Law

Erik M. Jensen

Case Western Reserve University School of Law

Abstract

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the subject, United States v. Hatter. Finally, the article rejects an alternative justification for the Compensation Clause that the Court has lately advanced, namely the need to make the bench financially attractive to prospective judges. That rationale is unworthy of constitutional status under any interpretive theory.

Keywords: Article III, Compensation Clause, Hatter, judicial independence, taxing power

JEL Classification: K19, K34, K40

Suggested Citation

Entin, Jonathan L. and Jensen, Erik M., Taxation, Compensation, and Judicial Independence. Case Western Reserve Law Review, Vol. 56, p. 965, 2006; Case Legal Studies Research Paper No. 06-21. Available at SSRN: https://ssrn.com/abstract=941158

Jonathan L. Entin (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3321 (Phone)
216-368-2086 (Fax)

Erik M. Jensen

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3613 (Phone)
216-368-2086 (Fax)

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