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Opinion of Scalia, J.
ries 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.
This distinction between Government action affecting compensation and Government action affecting the value of compensation was the basis for our statement in O'Malley, supra, 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.
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
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