Yovino v. Rizo
The Supreme Court threw out a Ninth Circuit ruling that had counted the vote of Judge Stephen Reinhardt, who died 11 days before the decision was released, making his opinion the deciding vote.
The Court held that once a judge dies, he loses the power to participate in a case, even if his vote was cast before death, so appeals courts cannot treat a deceased judge's vote as valid when a decision is later issued.
“That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.”
The Court's summary of why counting a deceased judge's vote was unlawful.
How it got here: A federal trial court denied summary judgment to the county; the Ninth Circuit took the case en banc, and the county sought Supreme Court review of the vote-counting issue.
The Case in Depth
What happened
Aileen Rizo, an employee of the Fresno County Office of Education, sued the county superintendent, arguing the county's pay practices violated the Equal Pay Act of 1963. The Ninth Circuit took the case en banc to reconsider a prior ruling on the issue. Judge Stephen Reinhardt wrote the en banc opinion but died before it was released, and the court still counted his vote as part of the majority.
The question before the Court
Could a federal appeals court count the vote of a judge who died before the decision was officially issued?
Why it matters
The ruling sets a clear rule that federal appeals courts cannot count votes from judges who have died before a decision is publicly released, even if the judge finished voting beforehand. This affects how circuit courts handle pending en banc or panel decisions when a judge dies, and it wiped out a Ninth Circuit precedent on equal-pay law that had depended on the deceased judge's vote.
What changes now
The case goes back to the Ninth Circuit for further proceedings. The en banc court will need to reconsider the underlying Equal Pay Act question without counting Judge Reinhardt's vote, meaning the prior panel decision it aimed to clarify remains unresolved. This is a final ruling on the vote-counting question, though the underlying pay-discrimination dispute is not yet decided.
What this does not decide
The Court did not decide the merits of Rizo's Equal Pay Act claim or clarify how employers may justify pay differences based on prior salary. It ruled only on the narrow procedural question of whether a deceased judge's vote could count toward a decision issued after his death.
Concurrences and dissents
Concurrence — Justice Sotomayor
Justice Sotomayor concurred only in the judgment, without joining the per curiam opinion's reasoning, though no separate written explanation of her disagreement is included in the text.
How the Court got there
The legal reasoning, step by step
- The Court looked at whether well-established judicial practice allowed treating a judge's vote as locked in before a decision's public release; it found no rule or precedent making votes immutable before release, since judges may change their position up until a decision is issued.
- The Court applied its earlier ruling in a 1960 case interpreting the federal statute governing en banc courts, which held that a judge who is no longer in active service lacks the power to participate in a decision once it is issued, regardless of earlier participation.
- Applying that rule here, the Court found that because Judge Reinhardt was neither an active nor senior judge when the decision was filed, he had no legal power to be counted as part of the deciding majority at that time.
- The Court then looked to a companion statutory provision requiring a quorum, or minimum number of judges, to decide a case, noting that many appeals courts allow remaining judges to decide a case if a judge dies after argument, but only by counting the surviving judges' agreement, not the deceased judge's vote.
- Because only five of the ten surviving en banc judges actually agreed with Judge Reinhardt's opinion, and the other five reached the same result for different reasons, the Court concluded his opinion was never actually joined by a majority of living judges once he died.
Doctrinal impact
Cases affected by this decision
Reaffirms United States v. American-Foreign S. S. Corp. (363 U. S. 685)
The Court relied on this 1960 case's rule that only judges in active service can participate in a decision when issued.