SCOTUS: Dead judges can't vote

Even with all the Cohen hysteria going on, the rest of the government is still running normal operations, including the Supreme Court. The justices handed down a rather unusual ruling today in a case dealing with votes cast by the dead. But this didn’t have anything to do with voter fraud at the ballot box. They vacated a ruling where a judge from the Ninth Circuit wrote the court’s majority opinion, but the ruling was handed down more than a week after the judge had passed away. The Supreme Court’s ruling was summed up with the phrase, “federal judges are appointed for life, not eternity.” (CNBC)

The U.S. Supreme Court on Monday erased a ruling from a federal appeals court on the grounds that one of the judges who voted in the case was dead at the time it was handed down.

Judge Stephen Reinhardt, a judge on the U.S. Circuit Court of Appeals for the 9th Circuit, was listed as the author of a majority opinion in April 2018 that expanded protections against wage discrimination under the Equal Pay Act.

The problem with the opinion, the Supreme Court said, was that it was issued 11 days after Reinhardt, an appointee of President Jimmy Carter, had passed away.

The court’s ruling was unsigned with no mention of dissent, so I believe we’re left to presume it was a unanimous call. But should it have been?

I would say there’s an argument to be made that the Ninth Circuit panel heard the case, knew what Judge Reinhardt’s vote was and selected him to write the opinion. At that point, the case was effectively (though not officially) closed and it was already headed for the books. Taking away the judge’s last vote and erasing his last written opinion from his record seems rather harsh, doesn’t it? And the rest of the panel made that case to the Supreme Court as well.

With all that said, I do have to grudgingly agree with the Supreme Court’s explanation, at least in theory. It’s possible that any judge, including Reinhardt, could change their mind at the last minute, either choosing to rewrite the opinion or even change their vote entirely. In that sense, you might say that the ruling was rushed and might have an asterisk next to it in the future.

But shouldn’t that be dealt with on a case by case basis? If new information had become available in the eleven days after Judge Reinhardt’s demise or some new wrinkle emerged in the case that might have led to additional testimony, you could absolutely slam the brakes and have them open up the process again. But there’s no mention of that here. Reinhardt’s colleagues were apparently all satisfied that the case had been put to rest and their ruling was final. With this SCOTUS decision on the books, any time a judge passes away immediately after completing a case it will have to be thrown out and subjected to a do-over. And that simply doesn’t seem fair.