Three days ago, Ninth Circuit chief judge Sidney Thomas issued an opinion in which the decisive vote on the divided panel was deemed to have been cast by Judge Stephen Reinhardt.* Reinhardt died nearly four months ago, on March 29.
Law professors Jonathan Adler and Chris Walker have already weighed in with their cogent objections to Reinhardt’s vote being counted in this case. I’ll briefly add a few thoughts:
1. Chief judge Thomas asserts in a footnote that “Judge Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death.” (My italics.) I do not believe that the phrase “formally concurred” can possibly bear its natural meaning. To put it more bluntly, I think that Thomas is misstating things.
A judge does not “formally” concur in an opinion until the opinion is issued. Until such time, the judge is free to change his mind. So even if, as I will assume, Thomas had circulated his majority opinion and Reinhardt had sent him a memo stating that he would join it, that action was provisional and in theory subject to alteration.
2. Given that the panel opinion did not issue until nearly four months after Reinhardt’s death, it is reasonable to presume that the dissenting judge had not yet circulated her dissent. As Adler points out, “sometimes [draft] dissents change judges’ minds.” I don’t have any particular illusion that Reinhardt would have changed his mind, but it makes a mockery of the deliberative process to exclude the possibility.
3. The dissenting judge seems to have acquiesced in Thomas’s vote grab (just as the dissenting judge did at year-end 2017 when Reinhardt pulled the same stunt in adding his dead colleague Harry Pregerson’s vote to his opinion).
One might, I suppose, defend a system in which the dissenting judge’s acquiescence should be dispositive as a check against abuse. But if such a system were to be adopted, it shouldn’t be hidden behind claims that a dead judge had “formally concurred.” Plus, there might be pressure on a dissenting judge not to make waves. Here, for example, the dissenting judge was a visiting judge, invited by Thomas to sit on the panel. How likely is it that she felt free to object to Thomas’s gambit?
4. As Walker notes, the Ninth Circuit’s opinion came “in a very important tax and administrative law case.” I of course don’t think that the rules governing voting by dead judges should vary depending on how important the case is. But I do wonder whether the importance of the case influenced Thomas’s decision to count Reinhardt’s vote.
* This is not the first time since his death that Reinhardt has been deemed to cast a dispositive vote: Reinhardt is credited as the author of the en banc majority opinion in Rizo v. Yovino, issued on April 9, 2018, eleven days after his death. His majority opinion was joined by five judges. 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.
By my count, Reinhardt has been credited with taking part in four other matters since his death. In none of these other matters was his vote dispositive of the outcome.
[The original version of this footnote missed that Reinhardt’s vote in Rizo was dispositive. Thanks to Howard Bashman for the correction.]