You would think this is obvious, but the United States Supreme Court has ruled that a judge’s decision made before a case is decided does not count if the judge dies before the decision is actually released to the public.

The case, Vovino v. Rizo, involved the late Stephen Reinhardt, a judge on the United States Court of Appeals for the Ninth Circuit, located here in California.  He was listed as the author of a decision by the Ninth Circuit on April 9, 2018, 11 days after he passed away.  Not only that, but the other judges who decided the case were so evenly divided that Judge Reinhardt’s decision made the difference in the outcome.  In a footnote, the Ninth Circuit said that “[p]rior 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 Supreme Court nearly died when it read this decision. The Court said “it is generally understood that a judge may change his or her position up to the very moment when a decision is released”.  The Court added, “we are aware of no cases in which a court of appeals panel has purported to issue a binding decision that was joined at the time of release by less than a quorum of the judges who were alive at that time”.

The Court added, “[b]ecause 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”.  The end.