Why State Supreme Court Justices Would Rather Be Federal Judges

Compensation, tenure, and other factors

In my recent posts on the dramatic shift in the professional background of Supreme Court justices, I observed that William Brennan Jr. in 1956 was the last sitting supreme court justice to be picked for a Supreme Court vacancy. That fact reflects, I believe, a broader decline in the stature of state supreme court justices.

You might think that being on a state supreme court—the highest judicial authority on what a state’s constitution and laws mean—might be the next best thing to being on the U.S. Supreme Court. But that’s not at all how many state supreme court justices have viewed the matter.

I recall one of the early confirmation hearings for Bill Clinton’s lower-court nominations that I handled for Senator Orrin Hatch in 1993. Two of the nominees were sitting state supreme court justices, Tennessee supreme court justice Martha Craig Daughtrey and Nebraska supreme court justice Thomas Shanahan. I did not find it particularly surprising that Daughtrey was interested in serving on the Sixth Circuit. But I was struck that Shanahan, at age 59, was willing to be nominated for a federal district judgeship in Nebraska. Why, I wondered, would he trade a seat on Nebraska’s highest court for a seat at the bottom of the federal judicial hierarchy?

Judge Thomas M. Shanahan

In the decades since Clinton became president, 44 sitting state supreme court justices have leaped to the lower federal courts—27 to federal courts of appeals, 17 to federal district courts. Over this same time span, only one federal judge has accepted an appointment to a state supreme court.

What explains this disparity?

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One simple part of the answer is compensation. Let’s explore two aspects of compensation, salaries and pensions.

Let’s start with salaries.

In 1993, the salary for federal district judges was $133,600, and the salary for federal appellate judges was $141,700. In the decades since, those salaries have gradually risen to $247,400 and $262,300.

Those salaries are very low compared to what many attorneys in private practice make. But they compare well to the salaries of state supreme court justices.

In 1993, according to the National Center for State Courts, the salaries of associate justices of the 50 state supreme courts ranged from $62,452 to $121,207, with average and median salaries just above $92,000. In 2025, the salaries range from $126,000 to $298,721 (in California), with average and median salaries of around $210,000 and $215,000, respectively.

To make the point another way: In 1993, federal district judges and federal appellate judges earned more than every associate state supreme court justice. Federal district judges earned 45% more than the median associate state supreme justice, and federal appellate judges earned 53% more.

There is now a much wider variation among state salaries. But only eight states pay associate justices a salary higher than what district judges receive, and only two (California and Illinois) exceed the salary of federal appellate judges.

Now for pensions.

I’m not going to undertake a comprehensive assessment of how pensions for state supreme court justices compare to pensions for federal judges. The essential point to understand is that state pensions are typically structured very differently from federal judicial pensions, and the difference makes it very attractive for state supreme court justices to become federal judges.

Under the Rule of 80 that governs federal judicial pensions, a judge does not qualify for any pension until his age plus his years of federal judicial service equals 80. Plus, he must be at least 65 and must have at least 10 years of federal judicial service. The annual pension he receives is his salary at the time of retirement.

Pensions for state supreme court justices typically vest after three to ten years of state employment of any kind. The amount of the pension is usually based on the number of years of service and the final salary. Once a pension has vested, the justice can take another job without forfeiting the pension.

What this means is that a state supreme court justice whose pension has vested can become a federal judge and expect to earn an additional federal pension when he meets the Rule of 80. The situation of a federal judge who becomes a state supreme court justice is starkly worse. If he has not met the Rule of 80, he will not receive any federal pension, and tenure restrictions on state supreme court justices may also limit his ability to earn a state pension.

When you consider these compensation features together, it’s no surprise that the only federal judge to join a state supreme court in recent decades was Carlos Moreno. Clinton appointed Moreno to a federal district judgeship in California in 1998. When California governor Gray Davis appointed Moreno to the state supreme court three years later, Moreno’s salary actually increased a bit. Moreno would have had to serve a dozen more years as a federal judge to meet the Rule of 80. But he had previously been a state judge for more than ten years, so the salary that he received as a supreme court justice significantly increased his state pension.

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The lifetime tenure that federal judges enjoy is probably at least as significant as compensation in attracting state supreme court justices to the federal bench.

Only one state, Rhode Island, provides lifetime tenure to its state supreme court justices. Two others, Massachusetts and New Hampshire, give their justices terms of indefinite duration, except that retirement is mandatory at age 70.

In all of the other states, justices serve for a term of years and must then go through some form of reselection—a competitive election, a retention election, or a reappointment—to continue in office for another term. Most of these states also have a mandatory retirement age, commonly at 70.

However unpleasant the Senate confirmation process might be for federal judicial nominees, they know that once they are through that process and appointed they will never have to worry about being displaced from office (apart from the rare event of House impeachment and Senate conviction, which has hinged on criminal charges or convictions). By contrast, most state supreme court justices need to concern themselves with retaining their position, and many have to engage in campaigning, fundraising, and other politicking, even as they must strive to ensure that their concerns don’t improperly influence their decisionmaking.

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Various other factors might come into play. A state supreme court justice might view his colleagues as of lower caliber than his colleagues on a federal court of appeals would be. He might expect to encounter better lawyers, read better briefs, and attract better law clerks when he is on the federal bench. He might have absorbed the (contestable) notion that federal law is much more interesting and significant than state law. He might prefer not to have to live or work in the state capital. (California has long spared its justices this burden: its supreme court has been based in San Francisco since 1874.) He might want to position himself better for a possible Supreme Court nomination down the line.

There is also the ineffable matter of prestige. Whether it’s simply the product of compensation, tenure, and other factors or something on top of those, the prestige of being a federal judge has an attractive force.

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Judge Shanahan took senior status (rather than retiring) when he satisfied the Rule of 80 on his 70th birthday in 2004. He died in 2011 at the age of 77.