"Federal Judges Are Appointed for Life, Not for Eternity"

From today's Supreme Court opinion holding that a judge's vote may not be counted in an opinion released two weeks after his death.

|The Volokh Conspiracy |

From Yovino v. Rizo, just released today:

A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date. In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt's vote, the court deemed Judge Reinhardt's opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. 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.

[Detailed analysis omitted.-EV] …

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.

UPDATE: Commenter Eddy suggests the lower court decision might have been a misinterpretation of Hebrews 9:27:

[I]t is appointed unto men once to die, but after this the judgment ….

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  1. Not only do dead voters vote Democrat, but even dead judges vote Democrat!

    1. And yet real cases of actual vote fraud over the last decade or two have been exclusively by republicans. So perhaps you need to get off the golf course more grandpa.

      1. Oh, bullshit. There are recent cases of voter fraud, all by democrats

        1. There are recent cases of voter fraud, all by democrats

          That is quite the unqualified statement, particularly from a source animated by ignorance.

          (Whether the recent misconduct in North Carolina constituted voter fraud, election fraud, or both is an interesting point. As are (1) how much jail time the principle wrongdoer has earned and (2) whether the candidate and campaign manager who hired the cheater should be charge with crimes.)

          1. Why no outrage over the vote harvesting done in California by Demoncraps?

            1. Yea! And another thing, I don’t hear people complaining about bigfoot shitting on my front lawn, either!

            2. It’s legal in most Blue States. The John Olivers of the world don’t know and wouldn’t care about that

              1. Right, so Democrats made it legal for them to cheat.

          2. “Principal” not “principle.” I also correct those who confuse a podium for a lectern and “jail” for “prison.” Language matters.

          3. https://www.heritage.org/voterfraud

            Search it to your hearts content…

            There are also specific cases of voter fraud convictions in Texas, NYC, Ohio, but the limit on word length prevents posting links.

            1. Thanks for the link. Almost 1,200 proven frauds in the data set!

          4. Start working at home with Google! It’s by-far the best job I’ve had. Last Wednesday I got a brand new BMW since getting a check for $6474 this – 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to tech tab for work detail.
            >>>>>>>>>> http://www.payshd.com

      2. Yeah…sure….voter fraud is exclusively republican….what have you been smoking?

        To be fair I think both major parties have their own “fraud machine”. I would say thought the Democrats have refine their process especially in urban areas. It is so routine in most major cities that it is considered to a known joke among those who are in politics. Republicans commit voter fraud too, but mostly in small town elections.

        But just because both parties do it does not make it OK.

      3. There is a lot more evidence of voter fraud with democrats than progressives are willing to admit
        Coleman / franken

        bush gore 2000. Ease of dimpled ballots when punching more than one ballot at a time. Significant delay in recording votes in the 4 questionable counties. There was the Fl senate race, the statewide delta for the senate/presidential vote should be reasonably consistent through out all the individual precincts. That delta was significantly out of whack in most of the precincts in the 4 questionable counties.

  2. I was wondering how long the post-death decision would stand up.

    It sure would have been interesting to be various flies on various walls when this was discussed.

  3. Only in the Progressive 9th.

  4. I’m intrigued that Sotomayor concurred in the judgment only.

    1. She’s reserving the option of upholding the right of judges to vote if they’re only *mostly* dead.

      1. Trying to watch out for RGB.

        1. It could be that she didn’t like the line about, “But federal judges are appointed for life, not for eternity.” It sounds a little flippant, maybe even snarky. I was no fan of Reinhardt, but I probably would have taken that line out.

  5. I bet he stubbornly refuses to change his vote in further proceedings.

    But that this actually became an issue is a warning sign (one of many it seems). The judicial branch is in dire need of some serious reforms.

  6. You might think living constitutionalists would be the last people to let dead white guys affect their decisions.

    1. Well played, sir, well played.

    2. And conversely those who like to be ruled by dead guys should not be so quick to dismiss it. I, for one, require that they be dead for at least 150 years.

  7. The statement here seems a little over reaching. He participated in the decision and wrote the opinion, was the decision not made when he voted for it, while he was still alive, he did not participate from the grave? I can imagine cases where that might be questionable but not this one. Suppose Scalia had voted on a case and finished he opinion before his death would his colleagues on the Supreme Court disregarded his vote and started over?

    Suppose a judge were to die on the way to the clerks office with the decision in hand, would it still not count? I sense a whole series of John Grisham plots involving judges in critical cases. I can imagine a plot to eliminate all opponents of a particular position one by one, but I think he already sort of wrote that one.

    1. 12 days … a lot can happen in 12 days. When was the decision actually signed off on? If the others were still wrangling with it after he died, no, his vote shouldn’t count. Even the slightest discussion matters.

      Consider a jury where one juror dies after the foreman has read the results and they have been accepted. That’s ok, although if some other juror were to claim that the dead juror had been reading newspaper accounts etc, how could that be disputed? But until that decision has been read and the juror has had a chance to deny them, death cancels that verdict.

      Or at least it should. IANALOJ.

    2. The Court addressed this. A judge can change his mind up to any point where the judgment or mandate issues. So that fact that he voted one way or even wrote an opinion does not mean (at least theoretically) that he might not change his mind.

      Similar thing happens when someone is convicted and then dies on appeal. Even though the lower court entered a judgment of conviction, and even though there are only legal arguments to be made, the conviction is vacated upon death.

      1. Yeah, saw that on with the Aaron Hernandez (former Patriot) conviction.

        It was on appeal when he committed suicide, so the conviction was vacated.

      2. Interesting comparison. Most famous recent case where abatement was applied was the murder conviction of Aaron Hernandez, the Patriots football player.

        The full term is abatement ab initio, “ab iniitio” meaning “from the beginning.” Everything is reset to before the defendant was charged.

        The problem with this for judges is that, since discussions among judges are important, perhaps the entire presentation of the case to the panel should be done again, and the judicial proceedings “reset.”

        1. Interesting comparison. Most famous recent case where abatement was applied was the murder conviction of Aaron Hernandez, the Patriots football player.

          Also Ken Lay, the former Enron CEO.

      3. Has anybody looked at how abatement interacts with Son of Sam laws? I am curious if it provides an avenue for heirs to make $$$ that would otherwise have been foreclosed.

        1. “Son of Sam” laws were struck down a long time ago, so your question makes no sense.

          (New York’s current so-called “Son of Sam law” merely requires that when a criminal comes into money his victims are informed, so they’re alerted to the possibility of suing him. That’s obviously constitutional, but it’s also not really a “Son of Sam law”.)

    3. Suppose Scalia had voted on a case and finished he opinion before his death would his colleagues on the Supreme Court disregarded his vote and started over?

      Yes, unanimously, with Sotomayor perhaps even doing more than concurring in the judgment.

      1. On Scalia, I believe that I saw an interview with a Supreme Court clerk who was serving when he died. The Court took a revote on any case which he participated in and no opinion had been issued. Can’t remember if that resulted in any change for a pending case, but I do remember the court did not release any posthumous decisions written by Scalia.

        This decision would seem consistent with the practice of other circuit courts too.

        I can’t for the life of me think of a reason why the en banc panel wouldn’t just repoll the case entirely and assign another judge to write an opinion (or just let it be a tie vote and uphold the panel decision) unless they really really really wanted to set precedent for the entire circuit that badly.

        1. Being generous, they might have thought that they were respecting their fallen colleague by giving him one last opinion. If it hadn’t changed the outcome of the case from majority to split, I think it would not have raised too many eyebrows. As it was, they could have all signed the opinion and have it released jointly.

      2. Sotomayor may have been thinking of a scenario where RBG is still voting but is literally dying in a hospital bed. I wish I could say I was joking about this too, but I am in fact deadly serious (pun intended).

    4. That’s why I don’t think the idea was crazy, although it was certainly strange and, apparently, unconstitutional.

  8. They may have misinterpreted Hebrews 9:27 – “it is appointed unto men once to die, but after this the judgment.”

  9. A much more interesting take on dead judges continuing to affect the living:

    https://bit.ly/2XmLZ2m

  10. OK, a compromise – the Supreme Court should refer the case to a panel of distinguished dead judges – I mean, if you have that whole pool of dead judges to choose from, why limit yourself to this Reinhard fellow?

    Joseph Story, Learned Hand, Janice Rogers Brown (actually she’s alive, but the dead judges tend to be tilted toward the white end of things), Stephen Field – consult the most eminent historians and mediums to find out how they would have voted.

  11. I’d love to see a Constitutional amendment retiring them at seventy-five. Anyone who has dealt with oldies on an intimate basis knows how much they lose over their last years. Even seventy-five is generous.

    1. I don’t know about that. I know 90 year olds that are sharp as a tack and 50 year olds losing it quickly.

      I think it has to do with choosing your parents wisely! LOL

      1. 90 year olds may SEEM sharp as a tack while you chat with them. Have you spent hours every day with them to see their downs as well as ups? My late mother was herself at 80, but bless her, I don’t doubt her cognative abilities had eroded considerably by then.

        And there’s no reason we have to allow for the few exceptions. You can’t drive a tractor trailer at 18, no matter how good a driver you might be at the time. We draw a line somewhere, and live with it. These post-80 Supremes suffer cogitive deficits like everyone else. Just because they can find their teeth in the morning doesn’t mean they’re ready to rumble at the office.

  12. Opinions aren’t released until every single judge agrees, right? Because if a judge needs time to work on their dissent, the opinion gets held until it is ready. So a judge, knowing his colleague is dying, could just hold up the opinion indefinitely? Sounds like a film plot.

    Also that opinion was definitely Gorsuch, right? It almost seems like he’s having too much fun with an opinion about one of his deceased former judiciary colleagues.

    1. I haven’t delved into the federal rules of appellate procedure deeply in years but I don’t think there is any rule stating the majority must hold up its opinion for any dissent. In the highly unlikely circumstance that a dissenting justice is holding out either to delay issuing mandate (or in your hypothetical waiting for a judge to die) the majority can issue its decision and just note in the slip opinion that a dissent is forthcoming.

      I can’t say I have seen this happen in the federal COA, but I have seen the court issue a decision with both a majority and dissent forthcoming (that was a case where someone was in jail and the COA ordered their immediate release…it was 2-1 split on a free speech issue).

      I HAVE seen this happen in intermediate appellate courts at the state level, especially in jurisdictions where the court is supposed to rule in so many days after getting an appeal (either by rule or statute). But it is rare. I saw this happen in a criminal case out of Indiana many years ago. The panel split and the majority issued its opinion well before the dissent came out which was a few months later. No reason was made apparent in either the majority or dissent, but the majority did rule for the convicted party so perhaps they thought since the prevailing party was in jail they should reap the benefits of a favorable decision in a timely manner not being upheld by a judge taking his time with a dissent.

    2. The per curiam vote is too short to be recognizable based upon writing style. It could have been anyone other than Sotomayor.

      But were I to wager, I’d give good odds ? much better than 8-to-1 ? that this is Chief Justice Roberts’ handiwork, precisely because it involves the constitutional legitimacy of the federal judiciary and because of his supervisory role, beyond his SCOTUS vote in individual cases, over the judicial branch and the entire Judicial Conference in particular. It’s the kind of decision that SHOULD be written by the Chief Justice of the United States, but it should indeed have been per curiam.

      And it should have been unanimous. Shame on you, Justice Sotomayor.

      1. *”per curiam vote” should have read “”per curiam opinion,” sorry.

      2. I dunno – she is very wise. And very Latina.

        1. There was a note at the bottom that Sotomayor concurred in the judgment. That’s how you know she didn’t write the opinion.

      3. I’m going to give her the benefit of the doubt — not something I’m typically inclined to do — and assume that she didn’t like the line about, “But federal judges are appointed for life, not for eternity.” It sounds a little flippant, maybe even snarky. It’s not like Sotomayor doesn’t play rough in her own opinions, and I was no fan of Reinhardt, but I probably would have taken that line out.

  13. I’m still bound by votes of legislators long since deceased, as well as the dead founding fathers. Votes legally cast in the legislative brach continue to count.

    1. Do they? Votes can be changed before the final gavel brings down the curtain on voting. If a legislator dies after casting a vote but before the gavel, does his vote count?

  14. Yet another 9-0 reversal for the Ninth Circuit.

  15. Two scenarios: 1. A judge who votes in the majority writes a majority opinion in the second week of a 13 week (3 month) recess and dies two days after completing the same. Does anyone really think that the opinion is still controlling? 2. The same judge writes the majority opinion and dies on the bench just as the proceedings for the case are staring. What now?

  16. Every single judge on the Ninth Circuit who participated in this charade should be formally reprimanded by the Judicial Conference.

    Justice Sotomayor should be deeply ashamed. If, by God, she believes a dead judge should be able to vote, she owes us a written opinion explaining that rationale; otherwise, she, like all eight other members of the SCOTUS, should have joined in this per curiam opinion.

    1. No Justice ever owes a separate opinion. As a previous poster stated, it is possible that she did not appreciate the snarky tone when it really was not necessary, but did not want to embarrass her colleagues over it. Don’t get me wrong, there is a lot I disapprove of when it comes to Justice Sotomayor’s jurisprudence, but that does not mean there is something nefarious in this case.

      1. “Nefarious” isn’t a word I used, nystateofmind.

        Let’s say you’re right, and that she wanted to avoid “embarrassing her colleagues.”

        Well, each of her colleagues WENT ON RECORD with not only a vote, but also an opinion ? one with precedential effect, one that can be referenced in future disputes, one that clarifies the law (astonishing though it be that the Ninth Circuit got it completely, indefensibly wrong). That, sir, is the job of the SCOTUS.

        Saving one’s colleagues on the bench “from embarrassment” is a ridiculous notion, and these same nine Justices are this “snarky” (again, not a word I would choose) or more literally on a daily basis.

        You’re right that there’s no obligation in the Constitution or elsewhere that she vote on anything at all. She could recuse herself from everything. She could resign.

        But if she wants to do her job properly, she owes the world an explanation for why she wouldn’t go along with an otherwise unanimous opinion. And in my opinion, the “virtue-signaling” she’s engaged in is intended to encourage the progressive judges on the Ninth ? and other ? Circuits to continue in shenanigans like this.

        I repeat: Shame on Justice Sotomayor. Your mileage may vary, but as a lawyer of 40 years and, long ago, a law clerk for a federal appeals judge who tried to make sense out of the SCOTUS’ signals, that’s my opinion.

    2. Justice Sotomayor should be deeply ashamed. If, by God, she believes a dead judge should be able to vote, she owes us a written opinion explaining that rationale; otherwise, she, like all eight other members of the SCOTUS, should have joined in this per curiam opinion.

      ? You understand that she concurred, not dissented or abstained, right?

      1. Mr. Nieporent, she concurred ONLY in the judgment, not in the per curiam opinion.

        Her refusal in it means that she was unwilling to join the majority opinion. There’s no obligation that she explain why, and her silence doesn’t affect her vote; this may still be described as a unanimous decision, but the per curiam opinion is therefore NOT unanimous, and that is significant ? as I know you well know.

        Indeed, her refusal to concur in an otherwise unanimous opinion is a deliberate signal, a cryptic statement from Justice Sotomayor to some audience somewhere. But she lacks the guts and intellectual integrity to put her reason for refusing to concur in writing. It lessens my respect for her, and it strongly suggests that she’s UNABLE to craft a rationale that would adequately explain her non-concurrence; that’s indeed my working presumption unless and until she explains herself.

        In short, it’s a stunt ? a thumb in the eye of the other eight Justices, and a signal to the hard-core left of whom she’s an ideological captive most of the time.

        1. That’s an awful lot to read into a a concurrence to a per curium decision about the operation of the judicial system.

          1. That’s an awful lot to read into a a concurrence to a per curium decision about the operation of the judicial system.

            She went to the trouble to tell us all she wasn’t joining the per curiam opinion, but rather only in the judgment (vacate & remand). In other words, she thought that something about this per curiam opinion was undeserving of her concurrence.

            She should have explained why. If she’s got a reason that’s better (in any sense) than the one I’m inferring, it’s her job to write down and publish that reason. What she did is judicially gutless.

            1. “In other words, she thought that something about this per curiam opinion was undeserving of her concurrence.”

              No, she though the per curiam opinion was deserving of her concurrence, That’s why she concurred.

              “She should have explained why. If she’s got a reason that’s better (in any sense) than the one I’m inferring, it’s her job to write down and publish that reason. What she did is judicially gutless.”

              Bullshit. This is about the most inconsequential opinion the Supreme Court will ever issue and pretending that she is using this decision to send some kind of cryptic signal to somebody somewhere is just silly.

        2. So you would suddenly have respect for her if she wrote a concurring opinion that said: “I concur in the result, but disagree with my colleagues on their use of unnecessarily snarky dicta.”

          I am sure that the other 8 members of the Supreme Court know the reason(s) for her decision to merely concur with the Per Curiam opinion. That is all that is important.

          1. So you would suddenly have respect for her if she wrote a concurring opinion that said: “I concur in the result, but disagree with my colleagues on their use of unnecessarily snarky dicta.”

            Nope, not quite. It’s not dicta. But if it were, and if she wrote a separate concurrence to point that out, or to disassociate herself from some turn of phrase she found objectionable, I would respect that.

        3. “Mr. Nieporent, she concurred ONLY in the judgment, not in the per curiam opinion.”

          Right. Which means that your accusation/speculation that she “believes a dead judge should be able to vote” is not correct.

          “but the per curiam opinion is therefore NOT unanimous, and that is significant ? as I know you well know.”

          No, I’m afraid I don’t know why you think it’s significant that a unanimous decision only had 8 votes for the written opinion. In the unlikely event that the issue comes up again, it would be correct to write in a brief, “The Supreme Court unanimously rejected the premise that a dead judge’s vote can be counted.” Is opposing counsel going to rebut that with, “Yes, but one justice only concurred in the judgment”?

          This has neither legal nor practical significance. Nor do I think the other eight justices have given or are going to give this more than 30 seconds of thought. (And I don’t know what message you think the “hard core left” is going to draw from this.)

  17. The Supreme Court has a catchy expression for the rule in the Yovino case: “[F]ederal judges are appointed for life, not for eternity.” Score one for some nimble fingered clerk for one of the Justices, but that’s actually not true.

    Based on the doctrine of “stare decisis,” old rulings continue to apply into eternity. See, for example, Chief Justice John Marshall’s incredibly convoluted decision in 1803 in Marbury v. Madison. It has puzzled law students for 200 years since the actual decision on the merits was almost certainly wrong. But in establishing the concept of “judicial review” Chief Justice Marshall rules into eternity.

    1. You profoundly misunderstand the difference between judicial precedent and stare decisis, on the one hand, and the definitive resolution of particular pending cases and controversies through rendition of judgment, on the other hand, Mr. Tepper.

  18. “And as it is appointed unto men once to die…” unless one reads the comments here which is death after death after death.

  19. Anyone know what will happen on remand to the Ninth Circuit? Rehear the case with a whole new en banc panel? Randomly select another active judge to replace Judge Reinhardt? Reinstate the panel decision?

  20. I agree with Eugene on this point. However the VC is a little boring at the moment.

    I’d like Eugene’s take on the abortion issue and whether sate laws which allow the infant to die violate federal law (murder and civil rights) and the constitutional under equal protection under said laws.

    Thus in regards to the Sasse “born Alive” bill, I agree with some Dems that killing a baby after abortion is already illegal. So is it?

  21. Since we’re asking questions: does anyone remember how the debate
    over whether the Martian poet who continued to write his opus after death in Stranger
    in a Strange Land was resolved?

  22. Sounds like the Democrat voter base…dead people voting in every election

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