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.

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  1. I assume that every justice agreed that the decedent's view was correctly represented and that his view should be included.

  2. What's even the argument that one shouldn't include his vote? Presumably there should be a uniform rule to prevent people from trying to count such votes just when they favor their outcome but there seems to be no prima facia reason that the rule should be the judge must be alive when the decision is issued.

    1. Is "the vote" a formal, recorded, discrete-time event? I mean, does is the vote recorded in some formal, certified way, or is it handled on a case-by-case basis?

      1. I wager to say "no." At the Supreme Court, the case is undecided until the opinions are published. There was wide speculation that CJ Roberts changed his vote for National Federation of Independent Business v. Sebelius.

        1. Joe,
          Was there wide speculation by anyone who was not upset by the decision? As far as I can tell, all the rumors seemed to be coming from people/entities who wanted the ACA ruled unconstitutional (ie, those who would gain by undermining the decision's legitimacy at every opportunity).

          I'm not saying that you're wrong. Merely that I'm unaware of those who were both in favor of the ACA who also fall into your "wide" net.

          1. "Was there wide speculation by anyone who was not upset by the decision? "




            and here

            1. Oops, I must have screwed up the first link, but it's from daily kos. The other two work.

        2. I would suggest a better SCOTUS case would be Friedrichs v. California Teachers Association which changed after Justice Scalia died.

        3. I would suggest a better SCOTUS case would be Friedrichs v. California Teachers Association which changed after Justice Scalia died.

        4. Thanks Joe. If what you speculate is so, then I think that asserting a vote for a dead justice is wrong. If they want to preserve votes beyond a justice's death before a decision is published, they should have a certified, audit-able voting process. The law demands no less of us - take the case of a will, or no will, when someone dies. Similarly, we can't vote on behalf of our dead relatives, who passed during the campaign, but before election day (unless we are Democrats, I guess).

          1. At the court I worked at it was not unusual for a decision to be written months before release. Generally some amount of time was allocated for editing and rewrites, for short opinions this could be just a week or so, for a complicated decision it could be months. Then after the final opinion was done the dissent would be given some amount of time to craft their response, at least 30 days, but more wasn't unusual. Finally the decision could be held even longer if a judge wanted to respond to the dissent.

            All of this could occur without any change to the decision of the court.

  3. "I changed my mind!!!"

  4. I don't get it. How can it be said that the judge would have cast a vote after oral argument and that he formally concurred in the final decision? The only way this makes sense is if the final decision was written before the oral argument. Alternatively, maybe the "formally concurred" is a typo and the judge actually concurred informally.

    1. I think you're confused on the timing. He certainly did die after the oral argument; He died in November of 2017, and oral argument was in early 2015. The decision was formally issued only a month after he died, in December of last year.

      Apparently they were basically done, and just proof reading the opinion before issuing it when he died.

  5. Forget it, Jake; it's the Ninth Circuit.

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