Bench Memos

Law & the Courts

Judicial Activism from the Grave

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.

In a divided panel decision issued last Friday in Hernandez v. Chappell, Judge Stephen Reinhardt added Pregerson to his opinion to create a majority ruling vacating, on habeas review, the convictions in 1983 of Francis Hernandez on two counts of first-degree murder, two counts of rape, and two counts of forcible sodomy. 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.” Judge Jacqueline Nguyen, an Obama appointee, dissented.

In fairness to Reinhardt, I will note that the question whether and when a judge who has died can nonetheless take part in a court’s ruling is a contested one. As Howard Bashman noted in this How Appealing post in 2006, in two separate Third Circuit cases, a judge who had died was the author of the majority opinion.

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