May a federal court count the vote of a judge who dies before the decision is issued?
Yovino v. Rizo, (U.S. Sup. Ct. No. 18-272, Feb. 25, 2019)
By: Arthur Crais
The U.S. Supreme Court issued a per curiam opinion on Feb. 25, 2019 holding that when a federal judge who participates in the oral argument and authored the majority opinion dies before the opinion is issued, his vote does not count. The Ninth Circuit erred in doing so. “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 primary factor influencing the Court was that without his vote, the court would have split evenly. Though five living judges concurred in the result, they did so for different reasons. “The upshot is that Judge Reinhardt’s vote made a difference.” The Court noted further that a judge may change a position on the case prior to releasing the final opinion to the public.
A copy of the decision may be found following this URL:
