The Volokh Conspiracy

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When Judges Rule from Beyond the Grave

It seems some judges hold their offices for life . . . at least.


The Honorable Harry Pregerson served on the U.S. Court of Appeals for the Ninth Circuit for nearly 40 years, until his death in November of last year. Judge Pregerson's death did not end his service on the bench, however.

Ed Whelan flags a Ninth Circuit decision issued on December 29 — a month after Judge Pregerson died — in which Judge Pregerson is listed as a member of the majority. A footnote to the opinion states: "Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete." This is significant because the panel in the case, Hernandez v. Chappell, was split, so Judge Pregerson's vote was determinative.

Whether it is appropriate to include a judge in an opinion posthumously is apparently the subject of some debate. While Judge Pregerson was not alive when the opinion was issued, he did hear the case and would have cast a vote after oral argument. In addition, removing Judge Pregerson from the case after his death would have produced an evenly split panel, requiring reargument and delaying resolution of the case.

As Whelan notes, this is not the first time a judge has appeared on an opinion issued posthumously, but it is rare. Howard Bashman noted two such cases from the U.S. Court of Appeals for the Third Circuit in 2006.