Bench Memos

Law & the Courts

Reinhardt No Longer Votes from the Grave?

A follow-up to this post of mine: Two weeks after a divided Ninth Circuit panel issued a ruling in which Judge Stephen Reinhardt, who died in March, was deemed to have cast the deciding vote, a “reconstituted panel”—with Judge Susan Graber replacing Reinhardt—has withdrawn the ruling so that it can “confer” on how to proceed.

I’m glad to see this step but would be curious as to the reason for the panel’s action. Ninth Circuit chief judge Sidney Thomas, author of the original panel opinion, had previously asserted—implausibly, for the reasons stated in my initial post—that Reinhardt “formally concurred in the majority opinion prior to his death.” Has Thomas now abandoned that assertion? What is the principle that now governs the Ninth Circuit on actions by dead judges? Will the Ninth Circuit also withdraw its en banc ruling in Rizo v. Yovino, in which Reinhardt was credited as the author, and decisive vote in support, of the en banc majority opinion issued eleven days after his death?

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