Can Federal Judges Sue For Pay?

Like 800,000 other federal employees, federal judges are not being paid—though every one of them is working. But the administrative office for federal courts reports today that courts will run out of money on January 25^th. This will affect 94 district courts, 13 appellate courts—and 282,936 civil cases (e.g., lawsuits for civil rights violations, or pay claims, or discrimination), as well as 773,375 bankruptcy filings.

That last figure should give pause because if bankruptcy petitions are slowed or halted, it’ll have a major effect on banks and real estate companies.

But what about federal judges—can they sue for back pay?

Here is my point: In the Constitution, these judges were protected against the whims and caprice that English judges faced from time to time from a hostile Parliament or monarch. So, this language is in Article III, Section 1:

Article III (Article 3 - Judicial)

Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The Trump administration can spin this however they please, but not paying federal judges on time would be a first-time event—and it would be a diminution in pay. 

Furthermore, President Trump has, on numerous occasions, lambasted federal judges as being biased, or “Obama judges,” or of “Mexican heritage.” 

In other words, he has acted much like the type of tyrannical king that the framers had in mind for this provision of the Constitution.

The constitutional intrigue goes deeper. The most sympathetic federal judges to President Trump are originalists. There is no way to mince words here: the clear and specific intent of the Framers of the Constitution was to expressly prevent any reduction in pay for federal judges.

Will a federal judge sue to enforce the Constitution? Who would hear the case? Don’t care? A nation without a neutral judiciary cannot function as a  democracy.