Jonathan Turley – Judge Stephen Reinhardt of the Court of Appeals for the Ninth Circuit apparently capped his legendary career with the distinction of both published and being reversed on a decision after he passed away on March 29. The Supreme Court has ruled that the Ninth Circuit erred in allowing the opinion to be announced after Reinhardt passed. It was an astonishing and facially improper decision to publish the opinion after the death of a jurist. The Ninth Circuit was unanimously reversed — producing an increasingly rare unanimity on the Court. The per curiam ruling vacated the Ninth Circuit’s en banc ruling in Rizo v. Yovino.

The Court’s holding can be summed up in a single line: “Federal judges are appointed for life, not for eternity.”

In his decision in Rizo v. Yovino, Reinhardt affirmed the lower court’s denial of summary judgment in an Equal Pay Act case and held that prior salary cannot justify a wage differential between male and female employees. It was a fractured decision of a six judge majority with the five other judges splitting among the majority decision and three separate concurrences.

The problem is that the opinion was issue on April 9, 2018 after Reinhardt had died. The court simply added the following footnote at the start of the opinion:

“Prior to his death, Judge Reinhardt fully participated in this case
and authored this opinion. The majority opinion and all concurrences
were final, and voting was completed by the en banc court prior to his
death.”

The decision of the Ninth Circuit ignored the long-standing view that a decision is not final until its release — and thus a judge could change his position in the case until publication. For that reason, the decision of Reinhardt was not filed when he died, as the Court noted:

“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.”

The decision of the Ninth Circuit to publish the opinion does not speak well of the en banc panel. It has long been understood that the death of a jurist before publication would negate his vote and any opinion. This fact that it proved inconvenient for the court should not alter the obvious need to hear the case.

SF Source Jonathan Turley Feb 2019