Federalist 79: The Judicial Department

Compensation and Independence of the Judiciary

  • Subordination of subsistence to legislative control endangers independence; fixed support for judges is essential alongside tenure.

  • Clause: the judges "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." This balances stability with flexibility.

  • Why not a fixed salary in the Constitution? Monetary value and social conditions change; a fixed rate could become inadequate. Legislature may adjust, but never reduce the judge's starting allowance.

  • Difference from the President: President's salary cannot be increased or diminished; judges’ salaries may be altered but never diminished in a way that harms the judge’s initial provision. Reason: life tenure vs. limited term for the President (44 years).

  • Outcome: this provision, with permanent tenure, best promotes independence compared to state constitutions.

Variation of Salaries Over Time

  • Salaries may be altered from time to time as needed, but never so as to lessen the initial stipend of any judge.

  • This mechanism ensures stability while accommodating changes in circumstances.

Impeachment and Accountability

  • Precautions for responsibility: impeachment for malconduct by the House; trial by the Senate; if convicted, dismissal and disqualification from holding any other office.

  • This is the sole provision that aligns accountability with judicial independence in the federal framework.

Inability/Disability Provisions

  • Opposition to a fixed removal for inability: such a provision would be arbitrary and prone to abuse; boundary between ability and inability is unstable.

  • Insanity, lacking a formal provision, may be treated as a virtual disqualification.

Age Limits and Inability (New York Example)

  • New York’s provision: no judge beyond 6060; criticized as inappropriate for judges whose deliberative faculties endure beyond that age.

  • In a republic without pensions, dismissing long-serving judges requires a stronger humanitarian justification than fear of a “superannuated bench.”

Practical Conclusion

  • The combined structure—secure pay, life tenure, and impeachment—offers a more robust guarantee of judicial independence than many state models.