//  3/3/19  //  Commentary

Cross-posted from Dorf on Law

On Monday the Supreme Court issued a per curiam opinion in Yovino v. Rizo, reversing the Ninth Circuit en banc ruling in the case. The SCOTUS did not disagree with or even address the substance of the Ninth Circuit decision. Rather, it reversed because the lead opinion in the Ninth Circuit's 6-5 ruling was authored by Judge Stephen Reinhardt, who died 11 days before it was released.

A footnote in the Ninth Circuit opinion stated: "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death." That wasn't good enough for the Supreme Court, however, which announced a formal rule that a judge must validly hold office at the moment an opinion is released.

The SCOTUS decision is justifiable as a bright-line rule, but, as I shall explain, the case was not quite the no-brainer that the justices imagined. As my co-blogger and friend Prof Segall tweeted on Monday, "[t]he real issue" was not, as the per curiam claimed, whether "a deceased judge [may] exercise the judicial power of the United States after his death," but (now I'm quoting Prof Segall again) "whether dead judges could vote when they were alive but before the decision formally issued, a harder question, and not for nothing but they could have slipped in a comment about this judge’s long and outstanding service."

I agree with both of Prof Segall's observations. On the second point, I share the view of my fellow former Reinhardt clerk Prof Ben Sachs, who thought the per curiam a bit too snarky given the circumstances. As a few people have observed, an objection to that (perceived) snark might explain why Justice Sotomayor concurred in the judgment but not the per curiam.

For now I want to focus on the Court's bright-line rule. As I said, I think it is justified, all things considered, but it has costs and is in some tension with no less a decision than Marbury v. Madison.

Let's begin with the costs of the Supreme Court's rule. The Ninth Circuit panel issued its ruling in April 2017. The court decided to go en banc in August of that year. The en banc decision was handed down in April 2018. Generating a new en banc panel and ruling will, at the very least, occasion months of further delay. (Because of its size, the Ninth Circuit hears even en banc cases in panels of eleven, rather than via the full court.) And that's in a case that was handled with considerable speed on the appellate docket. Even so, the original case was filed in March 2014.

If the en banc ruling is unchanged by the substitution of a different judge, the case then goes back to the district court for trial, as the initial en banc ruling simply affirms the denial of a summary judgment motion by the defendant. One might think that over the course of litigation that could last the better part of a decade, a delay of, say, an additional six months is no big deal. But one might alternatively think that the Jarndyce-like pace of American litigation renders any substantial further delay problematic.

Then there is the additional expense. Even assuming that the new en banc panel does not require new briefing, an additional oral argument will lead to a great many hours billed to the clients. It will also divert the time of the judges and court staff.

Could that cost be avoided by randomly drawing a judge to replace Judge Reinhardt on the en banc panel and having that judge simply read the briefs and review a recording or transcript of the oral argument? Justice Ginsburg is voting in cases in which she missed being on the bench in person during her recent convalescence, so one might think that course is possible here too. However, there's an important distinction. The lawyers who appeared before the SCOTUS knew that they might have needed Justice Ginsburg's vote despite her personal absence. The lawyers who argued the original en banc version of the case didn't know that anyone would substitute for Judge Reinhardt, and so they did not know to pitch their arguments accordingly.

Is that a sufficient distinction to warrant a new en banc oral argument? If the court ultimately decides not to hold a new such argument, will that decision then be subject to further satellite litigation over the proper substitution procedure in cases of this sort

Against the costs of delay, expense, and legal uncertainty (potentially leading to further delay and expense), we might ask what are the benefits. In Yovino itself there are none.

The Supreme Court's rationale for its rule is that "a judge may change his or her position up to the very moment when a decision is released." But is there any non-zero likelihood that, had he lived, Judge Reinhardt would have changed his position after obtaining a majority vote for the outcome? This was a case under the Equal Pay Act in which the en banc panel affirmed the denial of a summary judgment motion by the employer. Anyone remotely familiar with Judge Reinhardt, his values, or even the text of the en banc opinion he wrote in this case would understand that he would not have changed his mind. Not in eleven days, not in eleven years, not ever.

Accordingly, the SCOTUS decision can only be justified, it at all, as a bright-line rule that produces net costs in particular cases--including the very one in which it is announced--but produces benefits in the long run. And, as I said above, I think the decision can be justified in those terms. However, the per curiam does not even attempt to offer such a justification.

So how can a bright-line rule be justified here? I don't think one can have a rule that a judge's post-opinion-writing death doesn't affect the outcome when the judge is someone like Judge Reinhardt with strong convictions on the issue but not when the judge is more wishy-washy. There needs to be a consistent rule for all judges. A rule that draws the line at the release of an opinion is a sensible one. And, as the per curiam notes, it's a rule that found support in a 1960 precedent holding that a judge's acceptance of senior status after a case went en banc precluded his participation in the en banc proceeding, because he was no longer an "active judge" within the meaning of the relevant statute.

But in that 1960 case, the judge actively participated in the en banc case when senior. Judge Reinhardt did not participate in this case after his death. The argument for the respondent was that the case was effectively over already when he was still alive.

The essential reason why the SCOTUS was nonetheless right is that no other bright line is as administrable as the date of release. But that is not to say that no other bright line is possible.

Consider Marbury v. Madison. In the first part of the opinion, Chief Justice John Marshall rejects the Jefferson administration's argument that Marbury's commission as a justice of the peace was ineffective because never delivered. Not so, says Marshall; once President Adams signed and sealed the commission, it became effective; the additional formality of delivery was not necessary.

Likewise here, one could say that once Judge Reinhardt and the other judges participating in the Ninth Circuit en banc finalized their votes, it was effective, with official release a mere formality.

Now, there's an obvious objection to this line of reasoning: Because the public would not know of the decision until it was released, a judge could in theory change his or her mind, and therefore the ruling isn't really final until released.

That's a reasonable objection, but it's also an objection to Marshall's reasoning in Marbury. Suppose that seconds after Adams signed and sealed Marbury's commission, an aide told the lame-duck president that he had just learned that Marbury had been caught trying to bribe a constable or, perhaps worse, had shifted his allegiance from the Federalist to the Democratic-Republican Party. Adams quickly tears up the commission and, for good measure, tosses it on the fire. In this case Marbury would not be entitled to be a justice of the peace; yet we would not say (or at least no one has thus far said) that the remote possibility that Adams might have changed his mind between signing and sealing the commission and delivering it undercuts the effectiveness of signing and sealing in a case in which there is no change of heart.

Accordingly, the obvious objection to the position taken by the Ninth Circuit en banc--that release can't be an unnecessary formality because that would preclude a change of heart--could be said to prove too much; it proves Marshall was wrong in Marbury too.

For my money, the best answer here probably is to say that Marshall was wrong about that point, which was, after all, only dicta in Marbury, as the Court ultimately held that it was without jurisdiction. But the fact that the per curiam's reasoning undercuts such a central landmark in SCOTUS history, even if on a secondary point, shows that perhaps the case should have been harder than the justices (excepting Sotomayor) thought. And that's to say nothing of the snark.


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