Supreme Court (loosely paraphrased): What do you think this is, Chicago? Dead Judges can’t vote.

Supreme Court (loosely paraphrased): What do you think this is, Chicago? Dead Judges can’t vote.

One of the more curious opinions was handed down by the Supreme Court as part of its February 25, 2019 Order List.

The Opinion was Yovino v. Rizo (pdf.)(full embed at bottom of post), arising out of the 9th Circuit. The issue was whether the vote on the case of the late Judge Stephen Reinhardt could be counted where he expressed his vote while alive, but died before the opinion was filed. The 9th Circuit said sure, count the vote even though Reinhardt was not alive at the time the opinion was filed.

Amy Howe at ScotusBlog has background on the dispute:

The late Judge Stephen Reinhardt, who served for 38 years on the 9th Circuit, once famously said that the Supreme Court “can’t catch ‘em all” – that is, it can’t reverse all of his opinions, because it takes so few cases each year. The liberal lion died on March 29, 2018, but today the Supreme Court sent one of his final opinions, released 11 days after he died, back to the 9th Circuit for reconsideration.

The case involves the Equal Pay Act, a federal law that generally requires that men and women receive the same pay for the same work. The law carves out a few exceptions, including for seniority, merit, and a “catch-all” that includes “any factor other than sex.”

The plaintiff in the case is Aileen Rizo, a California teacher, who complained that her pay as a math consultant in Fresno County was lower than that of her colleagues, especially the male ones. Defending itself, the school district argued that it had set Rizo’s salary based on her salary as a math teacher in Arizona, and that prior salaries qualified as a “factor other than sex” for purposes of the Equal Pay Act.

A federal district court disagreed. It concluded that, even if it isn’t itself discriminatory, allowing employers to consider prior salaries creates a high risk that a new salary will reflect (and perpetuate) previous gender discrimination. A three-judge panel of the 9th Circuit reversed and ruled for the school district, but the full 9th Circuit agreed to rehear the case and ruled for Rizo, in an opinion by Reinhardt that he finished but did not release before he died.

The school district went to the Supreme Court last summer, asking the justices to weigh in on both the Equal Pay Act question and whether Reinhardt’s vote can count in the case.

In the Supreme Court per curiam (not issued under a particular judge’s name but collectively for the entire court) opinion, the Justices announced that Chicago Rules don’t apply (they didn’t use that term, but had they, the Opinion could have been shortened):

The Ninth Circuit did not expressly explain why it concluded that it could count Judge Reinhardt’s opinion as “[t]he majority opinion” even though it was not endorsed by a majority of the living judges at the time of issuance, but the justification suggested by the footnote noted above is that the votes and opinions in the en banc case were inalterably fixed at least 12 days prior to the date on which the decision was “filed,” entered on the docket, and released to the public. This justification is inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.

As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.

* * *

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.

Evergreen question: What in the world was the 9th Circuit thinking?

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Yovino v. Rizo – Supreme Court Opinion – Can’t Count Dead Judge’s Vote by Legal Insurrection on Scribd

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