Judges

The Dead Can Vote (at least on the Massachusetts Supreme Court)—UPDATED

Chief Justice Ralph Gants may be dead, but that is not stopping him from authoring opinions.

|The Volokh Conspiracy |

Today the Supreme Judicial Court of Massachusetts decided Commonwealth v. McCalop, in which the court  concluded that the trial court erred in denying Khamal McCalop's motion to investigation allegations that racial bias tainted the jury. What is particularly interesting about this case, however, is that the opinion was authored by Chief Justice Ralph Gants.

Under normal circumstances, it is hardly a surprise when the Chief Justice of a court writes an opinion. What is odd about the McCalop opinion, however, is that Chief Gants died on September 14, ten days before the opinion was issued. This is noted in the first footnote of the opinion, which reads: " Chief Justice Gants participated in the deliberation on this case and authored this opinion prior to his death."

As readers may recall, there was some controversy when the U.S. Court of Appeals for the Ninth Circuit issued opinions in which Judge Stephen Reinhardt participated and, in at least one case (Altera Corp. v. Commissioner, cast the deciding vote on a divided panel. The Supreme Court ultimately took notice, rebuking the Ninth Circuit and reminding its judges that "federal judges are appointed for life, not eternity."

McCalop is apparently not the only decision released by the Massachusetts Supreme Judicial Court since September 14 to include the late Chief Justice Gants, but it appears to be this first attributed to him. I am also not aware of any cases in which he cast what would have been the deciding vote. Nonetheless, it seems odd for a court judgment to issue under his name from beyond the grave.

UPDATE:  A former clerk on the Supreme Judicial Court of Massachusetts e-mails to provide some details on the court's opinion drafting and publication practices. Because this information helps explain the posthumous publication of opinions, I am reproducing some of the former clerk's comments below, with only minor edits. The bottom line is that the publication of posthumous opinions appears to be largely a consequence of opinion production delays, and that the late Chief Justice Gants is not the first justice for whom this has occurred.

After opinions are assigned and written at the SJC, they get "circulated" to the other justices for a monthly meeting called "Consultation." After the court meets in Consultation, each opinion submitted emerges with one of three statuses: "go," "go subject to," or "take."

An opinion that is a "go" has been approved by the court. At Consultation, other justices may provide minor editorial changes, which the author may incorporate, and the opinion is then sent to the Reporter's Office.

An opinion that is a "go subject to" requires a more substantial change and recirculation before it is approved by the court. After Consultation, the author will make the necessary modifications, recirculate the opinion, and if all of the other justices approve of the changes, it becomes a "go" and gets sent to the Reporter's Office.

And an opinion that is a "take" has not been approved by at least one justice, who will then write a concurrence or a dissent that will be circulated for the next Consultation. The authors of the opinion and the concurrence/dissent will generally share their drafts back and forth before Consultation so that each can respond to the other, and at the Consultation, the justices will decide whether to join the court's opinion or the concurrence/dissent. Once that has all been voted on, the opinions go to the Reporter.

So, by the time an opinion gets to the Reporter's Office, it has been voted on, sometimes multiple times, and is ready for publication. However, the actual process of getting an opinion published generally takes about three months, given staffing and time constraints. The Reporter checks that every fact is supported by the record and verifies the accuracy of every citation or quotation. Opinions are generally worked on by the Reporter's Office in the order that they are received, unless there is some reason why they should be prioritized, e.g., they involve release of a prisoner.

This year, two things happened that impacted the publication timeline. First, of course, the pandemic generally slowed things down, but it also meant that time-sensitive COVID-related cases were prioritized by the Reporter. Second, Justice Lenk was supposed to retire in August (she has since delayed it to December), so the Reporter's office was prioritizing publication of her opinions over those of the other justices.

All that to say, the votes on these posthumous opinions long preceded Chief's death, and the opinions themselves have been written and sitting with the Reporter for a long time at this point; they just hadn't been prioritized for publication. Now, of course, they are.

I appreciate the former clerk providing this additional context.

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  1. Yes, I believe an appellate case decided not when the opinion was written or voted upon, but when it is actually issued by the Court. The Court could have simply noted that the late justice was the author of the opinion, which the Court is adopting as its own.

    1. The outcome your propose would be highly preferable to what occurred – the court would have been accurate in its description of authorship, in place of the potentially inaccurate or misleading use of “authored” in the footnote, and the other Justices would have only used the judicial authority allocated to them and not claiming to use the judicial authority of their dead colleague. On the use of “authored” by the SJC in the footnote – It is worth noting that the opinion for which he was the “author” was issued 10 days after his death and issued days after 4 other opinions were issued, all of carried his name and vote. Based on the time delay, the other Justices may have changed the opinion in some manner before issuing it in the Chief Justice’s name and keeping him as author, despite him not approving the final opinion. Otherwise, why would there be a delay? Only other reason I can think of was maybe they had more hesitation about putting his name as author then about voting on his behalf…

  2. The living cannot vote (at least in Pennsylvania when someone throws Trump ballots in the trash).

  3. That phrase “cast the deciding vote” is a sure sign of pandering to the unthinking. No, dearie, every voter on the winning side cast the deciding vote. Unless you have some insider info that his vote was cast after everyone else, and then you’d have as big a case for all the losing side voters too, since if any of them had changed the vote, then the final vote would not have decided it.

  4. I though I posted a comment so either I was mistaken of the site ate it.

  5. Supposedly, Justice Thurgood Marshall told his clerks that if he died, “prop me up and keep on voting.”

    In think the His Honor was joking, however.

    OK, how about this…ask Gants if he approves having his name on the opinion. He could rap on the table once for yes, twice for no.

  6. Professor, with all due respect, that lengthy explanation by the former clerk sounds like Sir Humphrey Appleby in “Yes, Minister” explaining why the government needs to operate a hospital without any patients:

    https://www.youtube.com/watch?v=JAk448volww

  7. Court decisions at Bernie’s.

  8. I still maintain that the only justice in the Massachusetts halls of justice is in the halls….

  9. You know, Oliver Wendell Holmes, Jr. used to be on the Massachusetts Supreme Judicial Court before he got transferred to the U. S. Supreme Court. He’s not my favorite Justice, but he’s certainly a giant compared to the Massachusetts high court. He’d add more lustre to the bench.

    Since the U. S. high court doesn’t let dead judges vote, but the Massachusetts high court does, the living justices should send an emissary to Arlington National Cemetery and ask for his vote whenever they have a particularly difficult case.

    https://www.findagrave.com/memorial/494/oliver-wendell-holmes

    Wait, the findagrave site published information about Justice Holme’s current residence!

  10. The reason that the Ninth got reversed is because a justice could change his mind up until the decision is published, so it couldn’t be considered final by then. In the Massachusetts court, is the opinion considered final when it’s sent to the Reporter, or could a judge still decide at the last minute that they’ve changed their mind and pull back an opinion? If they consider it final, then I don’t see a problem with this opinion. But if a judge could pull it back, even if it’s rarely done, then I don’t think a deceased judge’s vote should count.

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