It's impossible to pay Supreme Court justices or indeed any judges at any level anything remotely approximating the value of what they produce for society, even when they make decisions I disagree with. Furthermore, there are many people who would take no money at all in return for being Supreme Court justices, just as many people engage in charitable work for the honor and service itself. What then is the theory of paying justices and judges? It can't be pay for performance. It isn't pay for value. It can't be paying a living wage, because we already do that. I have friends who are lifetime judges and the country is lucky to have them on the bench. I'd like them paid more because I know they are good people and they deserve raises. But what really is the Chief Justice's push for more pay about?

The Chief's unstated but real thesis is that the people who ought to be judges are those who would otherwise practice law in high-paid law firms that represent corporations. A very different view would be that judges ought to come from a pool that includes those who might instead choose to be elected to national or state legislatures, seek tenure on law school faculties, work as civil servants, represent the indigent and disadvantaged in legal aid clinics, and otherwise not (like I did) go into corporate defense work. This pool roughly is already at income parity with judges. The problem is that the members of this pool don't get appointed, not that they aren't willing to be judges. Law school faculties alone could staff every federal judgeship and, as the old joke goes, would raise the average at both institutions. (Just kidding, friends)

Another implicit assumption of the Chief is that we need to pay judges with an eye to the net present value of the total stream of revenue they would collect by becoming over 30 years or so the lead lawyers in big firms. More or less, such a success path can produce in big cities income from age 40 to 65 that averages in present dollar terms between one and two million, with outliers on the upside more than the downside. Paying judges wages that reach these levels is pretty much out of question, because like it or not their peer group incomes other government workers. However, I know at least 50, and maybe 100, big firm lawyers who would serve their country well by being judges on any court and who also would happily give up their practices for five or even 10 year stints, either early or at the end of their private practice careers, if they could get nominated and confirmed precisely for such terms. Why not create the possibility of such terms at the federal level, including for the Supreme Court? I'm not saying that judges shouldn't be named for life. I'm saying that I don't see why at least some couldn't choose to be named for terms, and could be confirmed on that basis, instead of being named for life and expected to serve for life. I bet the applicants for term appointments would be of extremely high caliber even if pay were not increased a dollar above today's levels. Asking someone to be a judge for life is a very different thing than asking someone to serve their country as a judge for a limited time period. In particular, there are numerous 60 year old lawyers who enjoy lucrative retirement packages from firms and would happily serve as judges for five or ten years. Many would eagerly serve not only on the Supreme Court, provided the law permitted them to take the retirement pay; they'd happily serve on other lower courts and in administrative forums too.

Paying judges enough to encourage more people to make the career choice of being a judge for life instead of joining a big law firm is only one scenario, and not necessarily the best one, for building a fine judiciary.