532 U.S. 557121 S.Ct. 1782159 L.Ed.2d 820
NOTICE:  This opinion is subject to formal revision before publication in the  preliminary print of the United States Reports. Readers are requested to notify  the Reporter of Decisions, Supreme Court of the United States, Washington, D. C.  20543, of any typographical or other formal errors, in order that corrections  may be made before the preliminary print goes to press.UNITED STATES, PETITIONERv.TERRY J. HATTER, Jr., JUDGE, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, et al.
No. 99-1978.
SUPREME COURT OF THE UNITED STATES
Argued February 20, 2001Decided May 21, 2001

Syllabus
In 1982, Congress extended Medicare to federal employees. That new law meant,  inter alia, that then-sitting federal judges, like all other federal employees  and most other citizens, began to have Medicare taxes withheld from their  salaries. In 1983, Congress required all newly hired federal employees to  participate in Social Security and permitted, without requiring, about 96% of  the then-currently employed federal employees to participate in that program.  The remaining 4%-a class consisting of the President, other high-level  Government employees, and all federal judges-were required to participate,  except that those who contributed to a "covered" retirement program could modify  their participation in a manner that left their total payroll deduction for  retirement and Social Security unchanged, in effect allowing them to avoid any  additional financial obligation as a result of joining Social Security. A  "covered" program was defined to include any retirement system to which an  employee had to contribute, which did not encompass the noncontributory pension  system for federal judges, whose financial obligations (and payroll deductions)  therefore had to increase. A number of federal judges appointed before 1983  filed this suit, arguing that the 1983 law violated the Compensation Clause,  which guarantees federal judges a "Compensation, which shall not be diminished  during their Continuance in Office," U.S. Const., Art. III, 1. Initially, the  Court of Federal Claims ruled against the judges, but the Federal Circuit  reversed. On certiorari, because some Justices were disqualified and this Court  failed to find a quorum, the Federal Circuit's judgment was affirmed "with the  same effect as upon affirmance by an equally divided court." 519 U.S. 801. On  remand, the Court of Federal Claims found that the judges' Medicare claims were  time barred and that a 1984 judicial salary increase promptly cured any  violation, making damages minimal. The Federal Circuit reversed, holding that  the Compensation Clause prevented the Government from collecting Medicare and  Social Security taxes from the judges and that the violation was not cured by  the 1984 pay increase.
Held:      1. The Compensation Clause prevents the Government from collecting Social  Security taxes, but not Medicare taxes, from federal judges who held office  before Congress extended those taxes to federal employees. Pp. 6-19.
(a) The Court rejects the judges' claim that the "law of the case"  doctrine now prevents consideration of the Compensation Clause because an  affirmance by an equally divided Court is conclusive and binding upon the  parties. United States v. Pink, 315 U.S. 203, 216, on which the judges rely,  concerned an earlier case in which the Court heard oral argument and apparently  considered the merits before affirming by an equally divided Court. The law of  the case doctrine presumes a hearing on the merits. See, e.g., Quern v. Jordan,  440 U.S. 332, 347, n. 18. When this case previously was here, due to absence of  a quorum, the Court could not consider either the merits or whether to consider  those merits through a grant of certiorari. This fact, along with the obvious  difficulty of finding other equivalent substitute forums, convinces the Court  that Pink does not control here. Pp. 6-7.
(b) Although the Compensation Clause prohibits taxation that singles out  judges for specially unfavorable treatment, it does not forbid Congress to enact  a law imposing a nondiscriminatory tax (including an increase in rates or a  change in conditions) upon judges and other citizens. See O'Malley v. Woodrough,  307 U.S. 277, 282. Insofar as Evans v. Gore, 253 U.S. 245, 255, holds to the  contrary, that case is overruled. See O'Malley, supra, at 283. There is no good  reason why a judge should not share the tax burdens borne by all citizens. See  Evans, supra, at 265, 267 (Holmes, J., dissenting); O'Malley, supra, at 281-283.  Although Congress cannot directly reduce judicial salaries even as part of an  equitable effort to reduce all Government salaries, a tax law, unlike a law  mandating a salary reduction, affects compensation indirectly, not directly. See  United States v. Will, 449 U.S. 200, 226. And those prophylactic considerations  that may justify an absolute rule forbidding direct salary reductions are absent  here, where indirect taxation is at issue. In practice, the likelihood that a  nondiscriminatory tax represents a disguised legislative effort to influence the  judicial will is virtually nonexistent. Hence the potential threats to judicial  independence that underlie the Compensation Clause, see Evans, supra, at  251-252, cannot justify a special judicial exemption from a commonly shared tax,  not even as a preventive measure to counter those threats. Because the Medicare  tax is nondiscriminatory, the Federal Circuit erred in finding its application  to federal judges unconstitutional. Pp. 7-13.
(c) However, because the special retroactivity-related Social Security  rules enacted in 1983 effectively singled out then-sitting federal judges for  unfavorable treatment, the Compensation Clause forbids the application of the  Social Security tax to those judges. Four features of the law, taken together,  lead to the conclusion that it discriminates in a manner the Clause forbids.  First, the statutory history, context, purpose, and language indicate that the  category of "federal employees" is the appropriate class against which the  asserted discrimination must be measured. Second, the practical upshot of  defining "covered" system in the way the law did was to permit nearly every  then-current federal employee, but not federal judges, to avoid the newly  imposed obligation to pay Social Security taxes. Third, the new law imposed a  substantial cost on federal judges with little or no expectation of substantial  benefit for most of them. Inclusion meant a deduction of about $2,000 per year,  whereas 95% of the then-active judges had already qualified for Social Security  (due to private sector employment) before becoming judges. And participation  would benefit only the minority of judges who had not worked the quarters  necessary to be fully insured under Social Security. Fourth, the Government's  sole justification for the statutory distinction between judges and other  high-level federal employees-i.e., equalizing the financial burdens imposed by  the noncontributory judicial retirement system and the contributory system to  which the other employees belonged-is unsound because such equalization takes  place not by offering all current federal employees (including judges) the same  opportunities but by employing a statutory disadvantage which offsets an  advantage related to those protections afforded judges by the Clause, and  because the two systems are not equalized with any precision. Thus, the 1983 law  is very different from the nondiscriminatory tax upheld in O'Malley, supra, at  282. The Government's additional arguments-that Article III protects judges only  against a reduction in stated salary, not against indirect measures that only  reduce take-home pay; that there is no evidence here that Congress singled out  judges for special treatment in order to intimidate, influence, or punish them;  and that the law disfavored not only judges but also the President and other  high-ranking federal employees-are unconvincing. Pp. 13-19.
2. The Compensation Clause violation was not cured by the 1984 pay increase  for federal judges. The context in which that increase took place reveals  nothing to suggest that it was intended to make whole the losses sustained by  the pre-1983 judges. Rather, everything in the record suggests that the increase  was meant to halt a slide in purchasing power resulting from continued and  unadjusted-for inflation. Although a circumstance-specific approach is more  complex than the Government's proposed automatic approach, whereby a later  salary increase would terminate a Compensation Clause violation regardless of  the increase's purpose, there is no reason why such relief as damages or an  exemption from Social Security would prove unworkable. Will, supra,  distinguished. Pp. 19-22.
203 F.3d 795, affirmed in part, reversed in part, and remanded.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, and Ginsburg, JJ., joined, and in which Scalia, J., joined as to Parts I, II, and V.
Opinion of the Court
Justice Breyer delivered the opinion of the Court.


1
The Constitution's Compensation Clause guarantees federal judges a  "Compensation, which shall not be diminished during their Continuance in  Office." U.S. Const., Art. III, 1. The Court of Appeals for the Federal Circuit  held that this Clause prevents the Government from collecting certain Medicare  and Social Security taxes from a small number of federal judges who held office  nearly 20 years ago-before Congress extended the taxes to federal employees in  the early 1980's.


2
In our view, the Clause does not prevent Congress from imposing a  "non-discriminatory tax laid generally" upon judges and other citizens, O'Malley  v. Woodrough, 307 U.S. 277, 282 (1939), but it does prohibit taxation that  singles out judges for specially unfavorable treatment. Consequently, unlike the  Court of Appeals, we conclude that Congress may apply the Medicare tax-a  nondiscriminatory tax-to then-sitting federal judges. The special  retroactivity-related Social Security rules that Congress enacted in 1984,  however, effectively singled out then-sitting federal judges for unfavorable  treatment. Hence, like the Court of Appeals, we conclude that the Clause forbids  the application of the Social Security tax to those judges.


3
* A


4
The Medicare law before us is straightforward. In 1965, Congress created a  Federal Medicare "hospital insurance" program and tied its financing to Social  Security. See Social Security Amendments of 1965, 79 Stat. 291. The Medicare law  required most American workers (whom Social Security covered) to pay an  additional Medicare tax. But it did not require Federal Government employees  (whom Social Security did not cover) to pay that tax. See 26 U.S.C.   3121(b)(5), (6) (1982 ed.).


5
In 1982, Congress, believing that "[f]ederal workers should bear a more  equitable share of the costs of financing the benefits to which many of them  eventually became entitled," S. Rep. No. 97-494, pt. 1, p. 378 (1982), extended  both Medicare eligibility and Medicare taxes to all currently employed federal  employees as well as to all newly hired federal employees, Tax Equity and Fiscal  Responsibility Act of 1982, 278, 96 Stat. 559-563. That new law meant that (as  of January 1, 1983) all federal judges, like all other federal employees and  most other citizens, would have to contribute between 1.30% and 1.45% of their  federal salaries to Medicare's hospital insurance system. See 26 U.S.C.   3101(b)(4)-(6).


6
The Social Security law before us is more complex. In 1935, Congress created  the Social Security program. See Social Security Act, 49 Stat. 620. For nearly  50 years, that program covered employees in the private sector, but it did not  cover Government employees. See 26 U.S.C.  3121(b)(5), (6) (1982 ed.)  (excluding federal employees); 3121(b)(7) (excluding state employees). In 1981,  a National Commission on Social Security Reform, convened by the President and  chaired by Alan Greenspan, noting the need for "action ' to strengthen the  financial status" of Social Security, recommended that Congress extend the  program to cover Federal, but not state or local, Government employees. Report  of the National Commission on Social Security Reform 2-1, 2-7 (Jan. 1983). In  particular, the Commission recommended that Congress require all incoming  federal employees (those hired after January 1, 1984) to enter the Social  Security system and to pay Social Security taxes. Id., at 2-7. The Commission  emphasized that "present Federal employees will not be affected by this  recommendation." Id., at 2-8.


7
In 1983, Congress enacted the Commission's recommendation into law  (effective January 1, 1984) with an important exception. See Social Security  Amendments of 1983, 101(b)(1), 97 Stat. 69 (amending 26 U.S.C.  3121(b)(5),  (6)). As the Commission had recommended, Congress required all newly hired  federal employees to participate in the Social Security program. It also  permitted, without requiring, almost all (about 96%) then-currently employed  federal employees to participate.


8
Contrary to the Commission's recommendation, however, the law added an  exception. That exception seemed to restrict the freedom of choice of the  remaining 4% of all current employees. This class consisted of the President,  Vice President, high-level Executive Branch employees, Members of Congress, a  few other Legislative Branch employees, and all federal judges. See 42 U.S.C.   410(a)(5)(C)-(G); see also H. R. Rep. No. 98-25, p. 39 (1983); H. R. Conf. Rep.  No. 98-542, p. 13 (1983) (noting that for these current federal employees "the  rules are being changed in the middle of the game"). The new law seemed to  require this class of current federal employees to enter into the Social  Security program, see 42 U.S.C.  410(a)(5)(C)-(G). But, as to almost all of  these employees, the new law imposed no additional financial obligation or  burden.


9
That is because the new law then created an exception to the exception, see  Federal Employees' Retirement Contribution Temporary Adjustment Act of 1983,  203(a)(2), 208, 97 Stat. 1107, 1111 (codified at note following 5 U.S.C.   8331). The exception to the exception said that any member of this small class  of current high-level officials (4% of all then-current employees) who  contributed to a "covered" retirement program nonetheless could choose to modify  their participation in a manner that left their total payroll deduction-for  retirement and Social Security-unchanged. A "covered" employee paying 7% of  salary to a "covered" program could continue to pay that 7% and no more, in  effect avoiding any additional financial obligation as a result of joining  Social Security.


10
The exception to the exception defined a "covered" program to include the  Civil Service Retirement and Disability System-a program long available to  almost all federal employees-as well as any other retirement system to which an  employee must contribute. 203(a)(2)(A), (D). The definition of "covered"  program, however, did not encompass the pension system for federal judges-a  system that is noncontributory in respect to a judge (but contributory in  respect to a spouse).


11
The upshot is that the 1983 law was specifically aimed at extending Social  Security to federal employees. It left about 96% of those who were currently  employed free to choose not to participate in Social Security, thereby avoiding  any increased financial obligation. It required the remaining 4% to participate  in Social Security while freeing them of any added financial obligation (or  additional payroll deduction) so long as they previously had participated in  other contributory retirement programs. But it left those who could not  participate in a contributory program without a choice. Their financial  obligations (and payroll deductions) had to increase. And this last mentioned  group consisted almost exclusively of federal judges.

B

12
This litigation began in 1989, when eight federal judges, all appointed  before 1983, sued the Government for "compensation" in the United States Claims  Court. They argued that the 1983 law, in requiring them to pay Social Security  taxes, violated the Compensation Clause. Initially, the Claims Court ruled  against the judges on jurisdictional grounds. 21 Cl. Ct. 786 (1990). The Court  of Appeals reversed. 953 F.2d 626 (CA Fed. 1992). On remand, eight more judges  joined the lawsuit. They contested the extension to judges of the Medicare tax  as well.


13
The Court of Federal Claims held against the judges on the merits. 31 Fed.  Cl. 436 (1994). The Federal Circuit reversed, ordering summary judgment for the  judges as to liability. 64 F.3d 647 (1995). The Government petitioned this Court  for writ of certiorari. Some Members of this Court were disqualified from  hearing the matter, and we failed to find a quorum of six Justices. See 28  U.S.C.  1. Consequently, the Court of Appeals' judgment was affirmed "with the  same effect as upon affirmance by an equally divided court." 519 U.S. 801  (1996); see 28 U.S.C.  2109.


14
On remand from the Court of Appeals, the Court of Federal Claims found (a)  that the 6-year statute of limitations, see 28 U.S.C.  2401(a), 2501, barred  some claims, including all Medicare claims; and (b) that, in any event, a  subsequently enacted judicial salary increase promptly cured any violation,  making damages minimal. 38 Fed. Cl. 166 (1997). The Court of Appeals (eventually  en banc) reversed both determinations. 203 F.3d 795 (CA Fed. 2000).


15
The Government again petitioned for certiorari. It asked this Court to  consider two questions:


16
(1)    Whether Congress violated the Compensation Clause when it extended the  Medicare and Social Security taxes to the salaries of sitting federal judges;  and


17
(2)    If so, whether any such violation ended when Congress subsequently  increased the salaries of all federal judges by an amount greater than the new  taxes.


18
Given the specific statutory provisions at issue and the passage of time,  seven Members of this Court had (and now have) no financial stake in the outcome  of this case. Consequently a quorum was, and is, available to consider the  questions presented. And we granted the Government's petition for writ of  certiorari.

II

19
At the outset, the judges claim that the "law of the case" doctrine prevents  us from now considering the first question presented, namely, the scope of the  Compensation Clause. They note that the Government presented that same question  in its petition from the Court of Appeals' earlier ruling on liability. They  point out that our earlier denial of that petition for lack of a quorum had the  "same effect as" an "affirmance by an equally divided court," 28 U.S.C.  2109.  And they add that this Court has said that an affirmance by an equally divided  Court is "conclusive and binding upon the parties as respects that controversy."  United States v. Pink, 315 U.S. 203, 216 (1942).


20
Pink, however, concerned a case, United States v. Moscow Fire Ins. Co., 309  U.S. 624 (1940), in which this Court had heard oral argument and apparently  considered the merits prior to concluding that affirmance by an equally divided  Court was appropriate. The law of the case doctrine presumes a hearing on the  merits. See, e.g., Quern v. Jordan, 440 U.S. 332, 347, n. 18 (1979). This case  does not involve a previous consideration of the merits. Indeed, when this case  previously was before us, due to absence of a quorum, we could not consider  either the merits or whether to consider those merits through grant of a writ of  certiorari. This fact, along with the obvious difficulty of finding other  equivalent substitute forums, convinces us that Pink's statement does not  control the outcome here, that the "law of the case" doctrine does not prevent  our considering both issues presented, and that we should now proceed to decide  them.

III

21
The Court of Appeals upheld the judges' claim of tax immunity upon the  authority of Evans v. Gore, 253 U.S. 245 (1920). That case arose in 1919 when  Judge Walter Evans challenged Congress' authority to include sitting federal  judges within the scope of a federal income tax law that the Sixteenth Amendment  had authorized a few years earlier. See Revenue Act of 1918, 213, 40 Stat. 1065  (defining "gross income" to include judicial salaries). In Evans itself, the  Court held that the Compensation Clause barred application of the tax to Evans,  who had been appointed a judge before Congress enacted the tax. 253 U.S., at  264. A few years later the Court extended Evans, making clear that its rationale  covered not only judges appointed before Congress enacted a tax but also judges  whose appointments took place after the tax had become law. See Miles v. Graham,  268 U.S. 501, 509 (1925).


22
Fourteen years after deciding Miles, this Court overruled Miles. O'Malley v.  Woodrough, 307 U.S. 277 (1939). But, as the Court of Appeals noted, this Court  did not expressly overrule Evans itself. 64 F.3d, at 650. The Court of Appeals  added that, if "changes in judicial doctrine" had significantly undermined  Evans' holding, this "Court itself would have overruled the case." Ibid. Noting  that this case is like Evans (involving judges appointed before enactment of the  tax), not like O'Malley (involving judges appointed after enactment of the tax),  the Court of Appeals held that Evans controlled the outcome. 64 F.3d, at 650.  Hence application of both Medicare and Social Security taxes to these  pre-enactment judges violated the Compensation Clause.


23
The Court of Appeals was correct in applying Evans to the instant case,  given that "it is this Court's prerogative alone to overrule one of its  precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); see also Rodriguez de  Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).  Nonetheless, the court below, in effect, has invited us to reconsider Evans. We  now overrule Evans insofar as it holds that the Compensation Clause forbids  Congress to apply a generally applicable, nondiscriminatory tax to the salaries  of federal judges, whether or not they were appointed before enactment of the  tax.


24
The Court's opinion in Evans began by explaining why the Compensation Clause  is constitutionally important, and we begin by reaffirming that explanation. As  Evans points out, 253 U.S., at 251-252, the Compensation Clause, along with the  Clause securing federal judges appointments "during good Behavior," U.S. Const.,  Art. III, 1-the practical equivalent of life tenure-helps to guarantee what  Alexander Hamilton called the "complete independence of the courts of justice."  The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). Hamilton thought these  guarantees necessary because the Judiciary is "beyond comparison the weakest of  the three" branches of government. Id., at 465-466. It has "no influence over  either the sword or the purse." Id., at 465. It has "no direction either of the  strength or of the wealth of the society." Ibid. It has "neither FORCE nor WILL  but merely judgment." Ibid.


25
Hamilton's view, and that of many other Founders, was informed by firsthand  experience of the harmful consequences brought about when a King of England  "made Judges dependent on his Will alone, for the tenure of their offices, and  the amount and payment of their salaries." The Declaration of Independence, §  11. And Hamilton knew that "a power over a man's subsistence amounts to a power  over his will." The Federalist No. 79, at 472. For this reason, he observed,  "[n]ext to permanency in office, nothing can contribute more to the independence  of the judges than a fixed provision for their support." Ibid.; see also id.,  No. 48, at 310 (J. Madison) ("[A]s the legislative department alone has access  to the pockets of the people, and has " full discretion " over the pecuniary  rewards of those who fill the other departments, a dependence is thus created in  the latter, which gives still greater facility to encroachments of the former").


26
Evans properly added that these guarantees of compensation and life tenure  exist, "not to benefit the judges," but "as a limitation imposed in the public  interest." 253 U.S., at 253. They "promote the public weal," id., at 248, in  part by helping to induce "learned" men and women "to quit the lucrative  pursuits" of the private sector, 1 J. Kent, Commentaries on American Law *294,  but more importantly by helping to secure an independence of mind and spirit  necessary if judges are "to maintain that nice adjustment between individual  rights and governmental powers which constitutes political liberty," W. Wilson,  Constitutional Government in the United States 143 (1911).


27
Chief Justice John Marshall pointed out why this protection is important. A  judge may have to decide "between the Government and the man whom that  Government is prosecuting: between the most powerful individual in the  community, and the poorest and most unpopular." Proceedings and Debates of the  Virginia State Convention, of 1829-1830, p. 616 (1830). A judge's decision may  affect an individual's "property, his reputation, his life, his all." Ibid. In  the "exercise of these duties," the judge must "observe the utmost fairness."  Ibid. The judge must be "perfectly and completely independent, with nothing to  influence or contro[l] him but God and his conscience." Ibid. The "greatest  scourge . . . ever inflicted," Marshall thought, "was an ignorant, a corrupt, or  a dependent Judiciary." Id., at 619.


28
Those who founded the Republic recognized the importance of these  constitutional principles. See, e.g., Wilson, Lectures on Law (1791), in 1 Works  of James Wilson 363 (J. Andrews ed. 1896); (stating that judges should be  "completely independent" in "their salaries, and in their offices"); McKean,  Debate in Pennsylvania Ratifying Convention, Dec. 11, 1787, in 2 Debates on the  Federal Constitution 539 (J. Elliot ed. 1836) (the security of undiminished  compensation disposes judges to be "more easy and independent"); see also 1  Kent, supra, at *294 ("permanent support" and the "tenure of their office" "is  well calculated " to give [judges] the requisite independence"). They are no  less important today than in earlier times. And the fact that we overrule Evans  does not, in our view, diminish their importance.


29
We also agree with Evans insofar as it holds that the Compensation Clause  offers protections that extend beyond a legislative effort directly to diminish  a judge's pay, say by ordering a lower salary. 253 U.S., at 254. Otherwise a  legislature could circumvent even the most basic Compensation Clause protection  by enacting a discriminatory tax law, for example, that precisely but indirectly  achieved the forbidden effect.


30
Nonetheless, we disagree with Evans' application of Compensation Clause  principles to the matter before it-a nondiscriminatory tax that treated judges  the same way it treated other citizens. Evans' basic holding was that the  Compensation Clause forbids such a tax because the Clause forbids "all  diminution," including "taxation," "whether for one purpose or another." Id., at  255. The Federal Circuit relied upon this holding. 64 F.3d, at 650. But, in our  view, it is no longer sound law.


31
For one thing, the dissenters in Evans cast the majority's reasoning into  doubt. Justice Holmes, joined by Justice Brandeis, wrote that the Compensation  Clause offers "no reason for exonerating" a judge "from the ordinary duties of a  citizen, which he shares with all others. To require a man to pay the taxes that  all other men have to pay cannot possibly be made an instrument to attack his  independence as a judge." Evans, 253 U.S., at 265. Holmes analogized the  "diminution" that a tax might bring about to the burden that a state law might  impose upon interstate commerce. If "there was no discrimination against such  commerce the tax constituted one of the ordinary burdens of government from  which parties were not exempted." Id., at 267.


32
For another thing, this Court's subsequent law repudiated Evans' reasoning.  In 1939, 14 years after Miles extended Evans' tax immunity to judges appointed  after enactment of the tax, this Court retreated from that extension. See  O'Malley, 307 U.S., at 283 (overruling Miles). And in so doing the Court, in an  opinion announced by Justice Frankfurter, adopted the reasoning of the Evans  dissent. The Court said that the question was whether judges are immune "from  the incidences of taxation to which everyone else within the defined classes . .  . is subjected." Id., at 282. Holding that judges are not "immun[e] from sharing  with their fellow citizens the material burden of the government," ibid., the  Court pointed out that the legal profession had criticized Evans' contrary  conclusion, and that courts outside the United States had resolved similar  matters differently, id., at 281. And the Court concluded that "a  non-discriminatory tax laid generally on net income is not, when applied to the  income of a federal judge, a diminution of his salary within the prohibition of  Article III." Id., at 282. The Court conceded that Miles had reached the  opposite conclusion, but it said that Miles "cannot survive." 307 U.S., at 283.  Still later, this Court noted that "[b]ecause Miles relied on Evans v. Gore,  O'Malley must also be read to undermine the reasoning of Evans." United States  v. Will, 449 U.S. 200, 227, n. 31 (1980).


33
Finally, and most importantly, we believe that the reasoning of Justices  Holmes and Brandeis, and of this Court in O'Malley, is correct. There is no good  reason why a judge should not share the tax burdens borne by all citizens. We  concede that this Court has held that the Legislature cannot directly reduce  judicial salaries even as part of an equitable effort to reduce all Government  salaries. See 449 U.S., at 226. But a tax law, unlike a law mandating a salary  reduction, affects compensation indirectly, not directly. See ibid.  (distinguishing between measures that directly and those that indirectly  diminish judicial compensation). And those prophylactic considerations that may  justify an absolute rule forbidding direct salary reductions are absent here,  where indirect taxation is at issue. In practice, the likelihood that a  nondiscriminatory tax represents a disguised legislative effort to influence the  judicial will is virtually nonexistent. Hence the potential threats to judicial  independence that underlie the Constitution's compensation guarantee cannot  justify a special judicial exemption from a commonly shared tax, not even as a  preventive measure to counter those threats.


34
For these reasons, we hold that the Compensation Clause does not forbid  Congress to enact a law imposing a nondiscriminatory tax (including an increase  in rates or a change in conditions) upon judges, whether those judges were  appointed before or after the tax law in question was enacted or took effect.  Insofar as Evans holds to the contrary, that case, in O'Malley's words, "cannot  survive." 307 U.S., at 283.


35
The Government points out that the Medicare tax is just such a  nondiscriminatory tax. Neither the courts below, nor the federal judges here,  argue to the contrary. Hence, insofar as the Court of Appeals found that  application of the Medicare tax law to federal judges is unconstitutional, we  reverse its decision.

IV

36
The Social Security tax is a different matter. Respondents argue that the  1983 law imposing that tax upon then-sitting judges violates the Compensation  Clause, for it discriminates against judges in a manner forbidden by the Clause,  even as interpreted in O'Malley, not Evans. Cf. O'Malley, supra, at 282 (stating  question as whether judges are immune "from the incidences of taxation to which  everyone else within the defined classes . . . is subjected" (emphasis added)).  After examining the statute's details, we agree with the judges that it does  discriminate in a manner that the Clause forbids. Four features of the law,  taken together, lead us to this conclusion.


37
First, federal employees had remained outside the Social Security system for  nearly 50 years prior to the passage of the 1983 law. Congress enacted the law  pursuant to the Social Security Commission's recommendation to bring those  employees within the law. See supra, at 3. And the law itself deals primarily  with that subject. Thus, history, context, statutory purpose, and statutory  language, taken together, indicate that the category of "federal employees" is  the appropriate class against which we must measure the asserted discrimination.


38
Second, the law, as applied in practice, in effect imposed a new financial  obligation upon sitting judges, but it did not impose a new financial burden  upon any other group of (then) current federal employees. We have previously  explained why that is so. See supra, at 3-5. The law required all newly hired  federal employees to join Social Security and pay related taxes. It gave 96% of  all current employees (employed as of January 1, 1984 or earlier) total freedom  to enter, or not to enter, the system as they chose. It gave the remaining 4% of  all current employees the freedom to maintain their pre-1984 payroll deductions,  provided that they were currently enrolled in a "covered" system. And it defined  "covered" system in a way that included virtually all of that 4%, except for  federal judges. See supra, at 4-5. The practical upshot is that the law  permitted nearly every current federal employee, but not federal judges, to avoid the newly imposed financial obligation.


39
Third, the law, by including sitting judges in the system, adversely  affected most of them. Inclusion meant a requirement to pay a tax of about  $2,000 per year, deducted from a monthly salary check. App. 49. At the same  time, 95% of the then-active judges had already qualified for Social Security  (due to private sector employment) before becoming judges. See id., at 115. And  participation in Social Security as judges would benefit only a minority. See  id., at 116-119 (reviewing examples of individual judges and demonstrating that  participation in Social Security primarily would benefit the minority of judges  who had not worked the 40 quarters necessary to be fully insured). The new law  imposed a substantial cost on federal judges with little or no expectation of  substantial benefit for most of them.


40
Fourth, when measured against Compensation Clause objectives, the  Government's justification for the statutory distinction (between judges, who  do, and other federal employees, who do not, incur additional financial  obligations) is unsound. The sole justification, according to the Government, is  one of "equaliz[ing]" the retirement-related obligations that pre-1983 law  imposed upon judges with the retirement-related obligations that pre-1983 law  imposed upon other current high-level federal employees. Brief for United States  40. Thus the Government says that the new financial burden imposed upon judges  was meant to make up for the fact that the judicial retirement system is  basically a noncontributory system, while the system to which other federal  employees belonged was a contributory system. Id., at 39-40; Reply Brief for  United States 16.


41
This rationale, however, is the Government's and not necessarily that of  Congress, which was silent on the matter. Cf. Motor Vehicle Mfrs. Assn. of  United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 50  (1983) (expressing concern at crediting post hoc explanation of agency action).


42
More importantly, the judicial retirement system is noncontributory because  it reflects the fact that the Constitution itself guarantees federal judges life  tenure-thereby constitutionally permitting federal judges to draw a salary for  life simply by continuing to serve. Cf. Booth v. United States, 291 U.S. 339,  352 (1934) (holding that Compensation Clause protects salary of judge who has  retired). That fact means that a contributory system, in all likelihood, would  not work. And, of course, as of 1982, the noncontributory pension salary  benefits were themselves part of the judge's compensation. The 1983 statute  consequently singles out judges for adverse treatment solely because of a  feature required by the Constitution to preserve judicial independence. At the  same time, the "equaliz[ation]" in question takes place not by offering all  current federal employees (including judges) the same opportunities but by  employing a statutory disadvantage which offsets a constitutionally guaranteed  advantage. Hence, to accept the "justification" offered here is to permit,  through similar reasoning, taxes which have the effect of weakening or  eliminating those constitutional guarantees necessary to secure judicial  independence, at least insofar as similar guarantees are not enjoyed by others.  This point would be obvious were Congress, say, to deny some of the benefits of  a tax reduction to those with constitutionally guaranteed life tenure to make up  for the fact that other employees lack such tenure. Although the relationships  here-among advantages and disadvantages-are less distant and more complex, the  principle is similar.


43
Nor does the statute "equaliz[e]" with any precision. On the one hand, the  then-current retirement system open to all federal employees except judges  required a typical employee to contribute 7% to 8% of his or her annual salary.  See generally 5 U.S.C.  8334(a)(1). In return it provided a Member of Congress,  for instance, with a pension that vested after five years and increased in value  (by 2.5% of the Member's average salary) with each year of service to a maximum  of 80% of salary, and covered both employee and survivors. See 5 U.S.C.  8339  8341. On the other hand, the judges' retirement system (based on life tenure)  required no contribution for a judge who retired at age 65 (and who met certain  service requirements) to receive full salary. But the right to receive that  salary did not vest until retirement. The system provided nothing for a judge  who left office before age 65. Nor did the law provide any coverage for a  judge's survivors. Indeed, in 1984, a judge had to contribute 4.5% of annual  salary to obtain a survivor's annuity, which increased in value by 1.25% of the  judge's salary per year to a maximum of 40% of salary. 28 U.S.C.  376(b), (l)  (1982 ed.).


44
These two systems were not equal either before or after Congress enacted the  1983 law. Before 1983, a typical married federal employee other than a judge had  to contribute 7 to 8% of annual salary to receive benefits that were better in  some respects (vesting period, spousal benefit) and worse in some respects (80%  salary maximum) than his married judicial counterpart would receive in return  for a 4.5% contribution. The 1983 law imposed an added 5.7% burden upon the  judge, in return for which the typical judge received little, or no, financial  benefit. Viewed purely in financial equalization terms, and as applied to  typical judges, the new requirement seems to over-equalize, putting the typical married judge at a financial  disadvantage-though perhaps it would produce greater equality when applied to other, less typical examples.


45
Taken together, these four characteristics reveal a law that is special-in  its manner of singling out judges for disadvantageous treatment, in its  justification as necessary to offset advantages related to constitutionally  protected features of the judicial office, and in the degree of permissible  legislative discretion that would have to underlie any determination that the  legislation has "equalized" rather than gone too far. For these reasons the law  before us is very different from the "non-discriminatory" tax that O'Malley  upheld. 307 U.S., at 282. Were the Compensation Clause to permit Congress to  enact a discriminatory law with these features, it would authorize the  Legislature to diminish, or to equalize away, those very characteristics of the  Judicial Branch that Article III guarantees-characteristics which, as we have  said, see supra, at 9-10, the public needs to secure that judicial independence  upon which its rights depend. We consequently conclude that the 1983 Social  Security tax law discriminates against the Judicial Branch, in violation of the  Compensation Clause.


46
The Government makes additional arguments in support of reversal. But we  find them unconvincing. It suggests that Article III protects judges only  against a reduction in stated salary, not against indirect measures that only  reduce take-home pay. Brief for United States 28. In O'Malley, however, this  Court, when upholding a "non-discriminatory" tax, strongly implied that the  Compensation Clause would bar a discriminatory tax. 307 U.S., at 282. The  commentators whose work O'Malley cited said so explicitly. See Fellman, The  Diminution of Judicial Salaries, 24 Iowa L. Rev. 89, 99 (1938); see also Hall,  Case Comment, 20 Ill. L. Rev. 376, 377 (1925); Corwin, Constitutional Law in  1919-1920, 14 Am. Pol. Sci. Rev. 635, 642 (1920). And in Will, the Court yet  more strongly indicated that the Compensation Clause bars indirect efforts to  reduce judges' salaries through taxes when those taxes discriminate. 449 U.S.,  at 226. Indeed, the Government itself "assume[s] that discriminatory taxation of  judges would contravene fundamental principles underlying Article III, if not  the [Compensation] Clause itself." Brief for United States 37, n. 27.


47
The Government also argues that there is no evidence here that Congress  singled out judges for special treatment in order to intimidate, influence, or  punish them. But this Court has never insisted upon such evidence. To require it  is to invite legislative efforts that embody, but lack evidence of, some such  intent, engendering suspicion among the branches and consequently undermining  that mutual respect that the Constitution demands. Cf. Wilson, Lectures on Law,  in 1 Works of James Wilson, at 364 (stating that judges "should be removed from  the most distant apprehension of being affected, in their judicial character and  capacity, by anything, except their own behavior and its consequences"). Nothing  in the record discloses anything other than benign congressional motives. If the  Compensation Clause is to offer meaningful protection, however, we cannot limit  that protection to instances in which the Legislature manifests, say, direct  hostility to the Judiciary.


48
Finally, the Government correctly points out that the law disfavored not  only judges but also the President of the United States and certain Legislative  Branch employees. As far as we can determine, however, all Legislative Branch  employees were free to join a covered system, and the record provides us with no  example of any current Legislative Branch employee who had failed to do so. See  Tr. of Oral Arg. 16-17, 37-38. The President's pension is noncontributory. See  note following 3 U.S.C.  102. And the President himself, like the judges, is  protected against diminution in his "[c]ompensation." See U.S. Const., Art. II,  1. These facts may help establish congressional good faith. But, as we have  said, we do not doubt that good faith. And we do not see why, otherwise, the  separate and special example of that single individual, the President, should  make a critical difference here.


49
We conclude that, insofar as the 1983 statute required then-sitting judges  to join the Social Security System and pay Social Security taxes, that statute  violates the Compensation Clause.

V

50
The second question presented is whether the  "constitutional violation ended when Congress increased the statutory salaries  of federal judges by an amount greater than the amount [of the Social Security]  taxes deducted from respondents' judicial salaries." Pet. for Cert. (I).


51
The Government argues for an affirmative answer. It points to a statutory  salary increase that all judges received in 1984. It says that this increase,  subsequent to the imposition of Social Security taxes on judges' salaries, cured  any earlier unconstitutional diminution of salaries in a lesser amount.  Otherwise, if "Congress improperly reduced judges salaries from $140,000" per  year "to $130,000" per year, the judges would be able to collect the amount of  the improper reduction, here $10,000, forever-even if Congress cured the  improper reduction by raising salaries $20,000, to $150,000, a year later. Reply  Brief for United States 18. To avoid this consequence, the Government argues, we  should simply look to the fact of a later salary increase "whether or not one of  Congress's purposes in increasing the salaries" was "to terminate the  constitutional violation." Ibid.


52
But how could we always decide whether a later salary increase terminates a  constitutional violation without examining the purpose of that increase? Imagine  a violation that affected only a few. To accept the Government's position would  leave those few at a permanent salary disadvantage. If, for example, Congress  reduced the salaries of one group of judges by 20%, a later increase of 30%  applicable to all judges would leave the first group permanently 20% behind. And  a pay cut that left those judges at a permanent disadvantage would perpetuate  the very harm that the Compensation Clause seeks to prevent.


53
The Court of Appeals consequently examined the context in which the later  pay increases took place in order to determine their relation to the earlier  Compensation Clause violation. It found "nothing to suggest" that the later  salary increase at issue here sought "to make whole the losses sustained by the  pre-1983 judges." 185 F.3d, at 1362-1363. The Government presents no evidence to  the contrary.


54
The relevant economic circumstances surrounding the 1984, and subsequent,  salary increases include inflation sufficiently serious to erode the real value  of judicial salaries and salary increases insufficient to maintain real salaries  or real compensation parity with many other private-sector employees. See Report  of 1989 Commission on Executive, Legislative, and Judicial Salaries, Hearings  before the Senate Committee on Governmental Affairs, 101st Cong., 1st Sess.,  12-13 (1989) (testimony of Lloyd Cutler regarding effect of inflation on judges'  salaries since 1969). For instance, while consumer prices rose 363% between 1969  and 1999, salaries in the private sector rose 421%, and salaries for district  judges rose 253%. See American Bar Association, Federal Judicial Pay Erosion 11  (Feb. 2001). These figures strongly suggest that the judicial salary increases  simply reflected a congressional effort to restore both to judges and to Members  of Congress themselves some, but not all, of the real compensation that  inflation had eroded. Those salary increases amounted to a congressional effort  to adjust judicial salaries to reflect "fluctuations in the value of money," The  Federalist No. 79, at 473 (A. Hamilton)-the kind of adjustment that the Founders  believed "may be requisite," McKean, Debate in Pennsylvania Ratifying  Convention, Dec. 11, 1787, in 2 Debates on the Federal Constitution, at 539; see  also Rosenn, The Constitutional Guaranty Against Diminution of Judicial  Compensation, 24 UCLA L. Rev. 308, 314-315 (1976).


55
We have found nothing to the contrary. And we therefore agree with the Court  of Appeals' similar conclusion. 185 F.3d, at 1363 ("[E]verything in the record"  suggests that the increase was meant to halt "the slide in purchasing power resulting from continued and unadjusted-for inflation").


56
The Government says that a circumstance-specific approach may prove  difficult to administer. Brief for United States 43. And we concede that  examining the circumstances in order to determine whether there is or is not a  relation between an earlier violation and a later increase is more complex than  the Government's proposed automatic approach. But we see no reason why such  relief as damages or an exemption from Social Security would prove unworkable.


57
Finally, the Government looks to our decision in Will for support. In that  case, federal judges challenged the constitutionality of certain legislative  "freezes" that Congress had imposed upon earlier enacted Government-wide  cost-of-living salary adjustments. The Court found a Compensation Clause  violation in respect to the freeze for what was designated Year One (where  Congress had rescinded an earlier-voted 4.8% salary increase). Will, 449 U.S.,  at 225-226. The Government points out that the Will Court "noted that Congress,  later in that fiscal year, enacted a statutory increase in judges' salaries that  exceeded the salaries that judges would have received" without the rescission.  Brief for United States 41. And the Government adds that "it was unquestioned in  Will" that the judges could not receive damages for the time subsequent to this  later enactment. Id., at 41-42.


58
The Will Year One example, however, shows only that, in the circumstances,  and unlike the case before us, the later salary increase was related to the  earlier salary diminishment. Regardless, the very fact that the matter was  "unquestioned" in Will shows that it was not argued. See 449 U.S., at 206, n. 3  (noting that the judges' complaint sought relief for Year One's diminution only  up to the moment of the subsequent salary increase). Hence the Court did not  decide the matter now before us.


59
We conclude that later statutory salary increases did not cure the preceding  unconstitutional harm.

VI

60
Insofar as the Court of Appeals found the application of Medicare taxes to  the salaries of judges taking office before 1983 unconstitutional, its judgment  is reversed. Insofar as that court found the application of Social Security  taxes to the salaries of judges taking office before 1984 unconstitutional, its  judgment is affirmed. We also affirm the Court of Appeals' determination that  the 1984 salary increase received by federal judges did not cure the  Compensation Clause violation. The case is remanded for further proceedings  consistent with this opinion.


61
It is so ordered.


62
Justice Stevens and Justice O'Connor took no part in the consideration or  decision of this case.             Scalia, J., filed an opinion concurring in part and dissenting in part.


63
Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part.


64
Stevens, J., and O'Connor, J., took no part in the consideration or decision of the case.


65
Justice Scalia, concurring in part and dissenting in part.


66
I agree with the Court that extending the Social Security tax to sitting  Article III judges in 1984 violated Article III's Compensation Clause. I part  paths with the Court on the issue of extending the Medicare tax to federal  judges in 1983, which I think was also unconstitutional.1


67
* As an initial matter, I think the Court is right in concluding that Evans v.  Gore, 253 U.S. 245 (1920)-holding that new taxes of general applicability cannot  be applied to sitting Article III judges-is no longer good law, and should be  overruled. We went out of our way in O'Malley v. Woodrough, 307 U.S. 277,  280-281 (1939), to catalog criticism of Evans, and subsequently recognized, in  United States v. Will, 449 U.S. 200, 227, and n. 31 (1980), that O'Malley had  "undermine[d] the reasoning of Evans." The Court's decision today simply  recognizes what should be obvious: that Evans has not only been undermined, but  has in fact collapsed.

II

68
My disagreement with the Court arises from its focus upon the issue of  discrimination, which turns out to be dispositive with respect to the Medicare  tax. The Court holds "that the Compensation Clause does not forbid Congress to  enact a law imposing a nondiscriminatory tax . . . upon judges, whether those  judges were appointed before or after the tax law in question was enacted or  took effect." Ante, at 12. Since "the Medicare tax is just such a  nondiscriminatory tax," the Court concludes that "application of [that] tax law  to federal judges is [c]onstitutional." Ante, at 12-13.


69
But we are dealing here with a "Compensation Clause," not a "Discrimination  Clause." See U.S. Const., Art III, 1 ("The Judges . . . shall, at stated Times,  receive for their Services, a Compensation, which shall not be diminished during  their Continuance in Office"). As we have said, "the Constitution makes no  exceptions for 'nondiscriminatory' reductions" in judicial compensation, Will,  supra, at 226. A reduction in compensation is a reduction in compensation, even  if all federal employees are subjected to the same cut. The discrimination  criterion that the Court uses would make sense if the only purpose of the  Compensation Clause were to prevent invidious (and possibly coercive) action  against judges. But as the Court acknowledges, the Clause " 'promote[s] the  public weal' . . . by helping to induce 'learned' men and women to 'quit the  lucrative pursuits' of the private sector," ante, at 9 (quoting Evans, supra, at  248; 1 J. Kent, Commentaries on American Law *294). That inducement would not  exist if Congress could cut judicial salaries so long as it did not do so  discriminatorily.


70
What the question comes down to, then, is (1) whether exemption from a  certain tax can constitute part of a judge's "compensation," and (2) if so,  whether exemption from the Medicare tax was part of the judges' compensation  here. The answer to the more general question seems to me obviously yes. Surely  the term "compensation" refers to the entire "package" of benefits-not just  cash, but retirement benefits, medical care, and exemption from taxation if that  is part of the employment package. It is simply unreasonable to think that  "$150,000 a year tax-free" (if that was the bargain struck) is not higher  compensation that "$150,000 a year subject to taxes." Ask the employees of the  World Bank.


71
The more difficult question-though far from an insoluble one-is when an exemption from tax constitutes compensation. In most  cases, the presence or absence of taxation upon wages, like the presence or  absence of many other factors within the control of government-inflation, for  example, or the rates charged by government-owned utilities, or import duties  that increase consumer prices-affects the value of compensation, but is not an  element of compensation itself. The Framers had this distinction well in mind.  Hamilton, for example, wrote that as a result of "the fluctuations in the value  of money," "[i]t was . . . necessary to leave it to the discretion of the  legislature to vary its provisions" for judicial compensation. The Federalist  No. 79, p. 473 (C. Rossiter, ed. 1961); see also Will, supra, at 227 (the  Constitution "placed faith in the integrity and sound judgment of the elected  representatives to enact increases" in judicial salaries to account for  inflation). Since Hamilton thought that the Compensation Clause "put it out of  the power of [Congress] to change the condition of the individual [judge] for  the worse," The Federalist No. 79, at 473, he obviously believed that inflation  does not diminish compensation as that term is used in the Constitution.


72
This distinction between Government action affecting compensation and Government action affecting the value of compensation was the basis for our  statement in O'Malley, 307 U.S., at 282, that "[t]o subject [judges] to a  general tax is merely to recognize that judges are also citizens, and that their  particular function in government does not generate an immunity from sharing with their fellow citizens the  material burden of the government " ." I agree with the Court, therefore, that  Evans was wrongly decided-not, however, because in Evans there was no  discrimination, but because in Evans the universal application of the tax  demonstrated that the Government was not reducing the compensation of its judges  but was acting as sovereign rather than employer, imposing a general tax.


73
But just as it is clear that a federal employee's sharing of a tax-free status that all citizens enjoy is not compensation (and elimination of that  tax-free status not a reduction in compensation), so also it is clear that a  tax-free status conditioned on federal employment is compensation, and its  elimination a reduction. The Court apparently acknowledges that if a tax is  imposed on the basis of federal employment (an income tax, for example, payable  only by federal judges) it would constitute a reduction in compensation. It is  impossible to understand why a tax that is suspended on the basis of federal  employment (an exemption from federal income tax for federal judges) does not  constitute the conferral of compensation-in which case its elimination is a  reduction, whether or not federal judges end up being taxed just like other  citizens. Only converting the Compensation Clause into a Discrimination Clause  can explain a contrary conclusion.


74
And this, of course, is what has been achieved by the targeted extension of  the Medicare tax to federal employees who were previously exempt. It may well be  that, in some abstract sense, they are not being "discriminated against," since  they end up being taxed like other citizens; but this does not alter the fact  that, since exemption from the tax was part of their employment package-since  they had an employment expectation of a preferential exemption from  taxation-their compensation was being reduced. One of the benefits of being a  federal judge (or any federal employee) had, prior to 1982, been an exemption  from the Medicare tax. This benefit Congress took away, much as a private  employer might terminate a contractual commitment to pay Medicare taxes on  behalf of its employees. The latter would clearly be a cut in compensation, and  so is the former.2 Had Congress simply imposed the Medicare tax on its own  employees (including judges) at the time it introduced that tax for other  working people, no benefit of federal employment would have been reduced,  because, with respect to the newly introduced tax, none had ever existed. But an  extension to federal employees of a tax from which they had previously been  exempt by reason of their employment status seems to me a flat-out reduction of  federal employment compensation.

III

75
As should be clear from the above, though I agree with the Court that the  extension of the Social Security tax to federal judges runs afoul of the  Compensation Clause, I disagree with the Court's grounding of this holding on  the discriminatory manner in which the extension occurred. In this part of its  opinion, however, the Court's antidiscrimination rationale is slightly different  from that which appeared in its discussion of the Medicare tax. There, the focus  was on discrimination compared with ordinary citizens; here, the focus is on  discrimination vis-a-vis other federal employees. (As the Court explains,  federal judges, unlike nearly all other federal employees, were not given the  opportunity to opt out of paying the tax). On my analysis, it would not matter  if every federal employee had been made subject to the Social Security tax along  with judges, so long as one of the previous entitlements of their federal  employment had been exemption from that tax. Federal judges, unlike all other  federal employees except the President, see Art. II, 1, cl. 7, cannot,  consistent with the Constitution, have their compensation diminished. If this  case involved salary cuts to pay for Social Security, rather than taxes to pay  for Social Security, the irrelevance of whether other federal employees were  covered by the operative legislation would be clear.


76
* * *


77
I join in the judgment that extension of the Social Security tax to sitting  Article III judges was unconstitutional. I would affirm the Federal Circuit's  holding that extension of the Medicare tax was unconstitutional as well.



NOTES:


1
  I agree with the Court, see Part II, ante, that the law-of-the-case doctrine  does not bar our consideration of the merits. I also join the Court in holding,  see Part V, ante, that any constitutional violation was not remedied by  subsequent salary increases.


2
 As the Court explains, the purpose of the Medicare tax extension was to  ensure that federal workers "bear a more equitable share of the costs of  financing the benefits to which many of them eventually became entitled" by  reason of their own or their spouses' private-sector employment. Ante, at 2  (internal quotation marks and citation omitted). As with the Social Security  tax, therefore, the Medicare tax aspect of this case does not present the  situation in which a tax exemption has been eliminated in return for some other  benefit, different in kind but equivalent in value. Cf. ante, at 14  ("[P]articipation in Social Security as judges would benefit only a minority").



78
Justice Thomas, concurring in the judgment in part and dissenting in part.


79
I believe this Court was correct in Evans v. Gore, 253 U.S. 245 (1920), when it held that any tax that reduces a judge's net compensation violates Article  III of the Constitution. Accordingly, I would affirm the judgment of the Court  of Appeals in its entirety.

