Judge Stephen Reinhardt. Photo: Jason Doiy/ ALM

Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit died on March 29, but that did not prevent the court on Monday from issuing an en banc ruling he wrote as law of the circuit in an important gender wage gap case.

In a footnote, the court stated, “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 en banc panel heard argument in San Francisco on Dec. 12.

But such a footnote would have made no sense at the U.S. Supreme Court. By long tradition, the court discounts the votes and opinions of justices upon death.

“I don’t think it is written down anywhere,” retired Supreme Court clerk Bill Suter said Monday. “But at the Supreme Court, before an opinion is issued, it’s not an opinion; it can be pulled at the last minute” if justices change their minds or make revisions.

In other words, if a justice can make changes in an opinion up to the time it is issued, a justice’s death before then makes the opinion an unfinished product not suitable for being handed down.

After Justice Antonin Scalia died in February 2016, his pending opinions were likely reassigned to another justice in the majority. That justice could use the Scalia writing as a starting point, but it would be regarded as a new opinion entirely, and Scalia’s name would not appear on the decision.

Arthur Hellman, professor at the University of Pittsburgh School of Law and an expert on federal courts, said “each court of appeals has its own practice” on how to count the vote of a deceased judge.

Hellman noted that on Dec. 29 of last year, Reinhardt—then alive—added Judge Harry Pregerson’s name to a habeas corpus decision. Pregerson had died about a month earlier. A footnote stated, “Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete.”

At the time, conservative commentator Ed Whelan wrote, “If you thought that Ninth Circuit judge Harry Pregerson’s death in November 2017 would mark the end of his long career of liberal judicial activism, you were wrong.”


Video of the Ninth Circuit’s Dec. 12 argument in Rizo v. Yovino is posted below: