Before U.S. Solicitor General Donald Verrilli first joined the Obama administration as an associate deputy attorney general in 2009, he was a partner at Jenner & Block, where average profits in 2008 were a robust $835,000 per partner, according to The American Lawyer. U.S. district court judges that year earned $169,300; federal appeals court judges made $179,500. Verrilli took a huge pay cut to serve in the Justice Department, most recently earning $165,300 as solicitor general, according to charts at the federal Office of Personnel Management. But Jenner's profits were up to $1.55 million in 2011, so if Verrilli eventually decides to return to his old firm he'll have a featherbed landing. Federal judges, meanwhile, have been stuck at the same pay since 2009: $174,000 for trial courts, $184,000 for circuit courts. Lifetime tenure was supposed to assure the independence of the federal judiciary, but for an increasing number of judges the gap between judicial pay and private practice makes the opportunity cost of sitting on the bench too high to bear.

The only reason I'm singling out Verrilli and his former firm is that the solicitor general is counsel of record in a new cert petition asking the U.S. Supreme Court to review an October 2012 appellate decision mandating raises for federal judges. In that ruling, known as Beer v. United States, a majority of the en banc Federal Circuit Court of Appeals held that under the Constitution's Compensation Clause, Congress may not deny federal judges the cost-of-living adjustments they were promised in a 1989 law revamping judicial ethics rules. The cert petition puts Chief Justice John Roberts in a peculiar position: The Chief Justice has been an outspoken champion of judicial raises, but the Justice Department argues that the Federal Circuit's decision in Beer contradicts Supreme Court precedent.

The background of the Federal Circuit ruling, as I've explained, is incredibly complicated, not least because of the Supreme Court's 1980 ruling in U.S. v. Will that Congress has the right to block raises for judges. Suffice it to say that the Federal Circuit majority concluded that the precise, automatic raises promised in the 1989 ethics law were different from the ad hoc pay raises addressed in the Supreme Court's Will ruling. Because federal judges were explicitly promised specific cost-of-living raises in the 1989 law, according to the Federal Circuit majority, those raises became part of the constitutionally protected ground on which judges expected to stand.

The Justice Department's cert petition, filed Friday, asserts that Beer contradicts the high court's holding in Will and contravenes at least four acts of Congress. When lawmakers passed the 1989 law, they relied on the Supreme Court's "clear holding that future judicial salary increases could be prevented from taking effect if Congress timely determined that blocking legislation was appropriate," the petition said. "The decision below, however, treats the 1989 act as an irrevocable commitment to give annual pay increases to sitting federal judges in perpetuity, regardless of budgetary constraints." The cert petition argues that the Federal Circuit ruling amounts to an invitation to every federal judge -- and, for that matter, every federal official whose salary is linked to judicial pay -- to sue the United States for damages. (The Beer decision applied only to the small group of current and former judges who brought the suit, but, as we've reported, a class of federal judges brought a follow-up suit in December to extend the Federal Circuit's reasoning to the entire judiciary.)

Interestingly, three of the Federal Circuit judges who voted to protect judicial raises said in a concurrence that the Supreme Court should take the case -- but only so the justices can reverse the court's precedent in Will. There's a chance that the Beer plaintiffs won't oppose cert but will similarly argue that it's time for the court to readdress the vexing problem of judicial pay.

Christopher Landau of Kirkland & Ellis, who represents the judges in the Beer case, declined to comment.

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