Robert Barnes for the Washington Post:
“Federal judges are appointed for life, not for eternity,” the Supreme Court concluded Monday, saying the late judge Stephen Reinhardt’s vote should not have been counted in a decision issued after his death.
In an unsigned opinion, the justices sent back a decision of the U.S. Court of Appeals for the 9th Circuit that found a practice of the Fresno County Office of Education violated the Equal Pay Act of 1963.
Reinhardt died March 29, 2018, but the 9th Circuit counted his vote after that. He was listed as the author of an en banc decision — one made by a majority of the full court — 11 days later.
“Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed,” the opinion stated. “Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference.”
The court decided that was unlawful.“That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death,” the opinion said. “But federal judges are appointed for life, not for eternity.”
Because the opinion is unsigned, lost perhaps for eternity will be the identity of the justice who penned that line. But it was not Justice Sonia Sotomayor, who noted that she “concurs in the judgment.”
The case, Yovino v. Rizo, returns to the 9th Circuit.
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Sorry Judcge Reinhardt. The “Heavenly Bench” doesn’t get to vote on temporal matters.
Actually we had this rule at the “Old BIA:” The Appellate Judge’s vote didn’t count if he or she retired before the decision was actually issued by our Clerk’s Office. Thankfully, during my tenure, none of my judicial colleagues died on duty.
PWS
02-16-19
I remember “fondly” that BIA rule. I tried to stay away from the BIA upcoming precedent of Matter of Artigas, the Cuban Adjustment/arriving alien case to avoid controversy as a former Miami IJ and Cuban refugee. At the EOIR conference in Anaheim, I had already pontificated on that subject to everyone who asked. It’s one of my charms.
To avoid controversy, I informally asked Lauren Mathen to substitute for me, and Fred Vacca, Lauren and Lory issued a decision reaching the same result as the latter precedent, but their decision sat in the clerk’s office for several weeks without being mailed and stamped, during which Fred retired and I had to “step into it” as Fred’s designated substitute.
I felt like Michael Corleone in the Godfather 1: “I thought I was out, but they keep bringing me back in”. LOL!
Thanks for the memory, Gus!
Best,
P