The late Ninth Circuit judge Stephen Reinhardt probably holds the record for the most unanimous reversals by the Supreme Court, so it’s only fitting that he somehow managed to rack up another one in an opinion issued in his name eleven days after his death.
“Federal judges are appointed for life, not for eternity.” That’s the punchline in the Supreme Court’s unanimous per curiam ruling today. In that ruling, the Court vacated the Ninth Circuit’s en banc ruling in Rizo v. Yovino in which Reinhardt was listed as the author of the six-judge majority opinion. Five other judges, in three separate concurrences, disputed the (supposed) majority’s position that an employer’s consideration of prior pay is impermissible under the Equal Pay Act. So without Reinhardt’s vote being added in, there would not have been a majority on the issue.
Rizo was issued on April 9, 2018, and Reinhardt died on March 29, 2018. In its opinion, the Court rejects the proposition, made in a footnote to the listing of the judges who took part in Rizo, that “the majority opinion and all concurrences were final” by the time of Reinhardt’s death:
We are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.
If it seems unfair to pin this reversal on Reinhardt, please recall that Reinhardt himself pulled the same stunt a few months earlier when he added his dead colleague Harry Pregerson to his opinion to create a majority.